Birinder Singh and ors. vs State of Haryana

N.C. Jain, J.

This judgment of mine would dispose of R.F.A. Nos. 2556, 2519, 2520, 2555, 2567, 2568 of 1987, 671 to 683, 805, 948, 1152, 1174 and 1109 to 1116 of 1988 as they arise out of the common notification issued under section 4 of the Land Acquisition Act (hereinafter referred to as `the Act) dated 20.8.1980 and published in the Government Gazette of the same date. The facural matrix of case may thus be noticed.

The Haryana Government sought to acquire an area measuring 154.96 acres in village Gahri Mundo, Tehsil Jagadhari, District Amabala for a public purpose, namely, development and utilisation of land as residential and commercial area in the Urban Estate of Jagadhri. The Land Acquisition Collector assessed market value of the acquired land at Rs. 72,600/ per acre except an area measuring 15 Bighas 12 Biswas which was found to be in a depression of 5 to 7 feet from the other areas. The area under depression was evaluated at Rs. 20,160/ per acre. The learned Additional District Judge on reference under Section 18 of the Act at the instance of the claimants in R.F.A. Nos. 2519, 2520, 2555, 2556, 2557 and 2568 of 1987 determined the value of the acquired land at Rs. 77,600/ per acre vide his award dated 27.7.1987 except the land in depression for which no enhancement was made. At a later stage while dealing with the same notification dated 20.8.1980, the learned District Judge determined the market value of the acquired land at Rs. 79, 860/ per acre in R.F.A. Nos. 671 to 683, 805, 948, 1152, 1174, 1109 to 1116 of 1988 vide his Award dt. 11.1.1988. As regards the land which was evaluated at Rs. 20, 160/ peracre, it was held by him that there was no good evidence for concluding that the land had pits of 5 to 7 feet and therefore that part of land, that is 15 Bighas 12 Biswas, was evaluated at the same rate, that is Rs. 79,860/ per acre.

The learned Additional District Judge while determining the market value of the acquired land on the aforesaid rates has primarily taken into consideration the Award given by this Court (Ex. R. 11) in Regular First Appeal No. 398 of 1983 (Tungal v. State of Haryana) wherein I.S. Tiwana, J. determined the market value of the acquired land situated in village Gobindpura. The land of Gobindpura was acquired by issuance of a notification dated 25.9.1979. The learned Additional District Judge in Tungal''s case (supra) determined the market value of the acquired land of Gobindpura at Rs. 15/ per square yard. This Court in Tungal''s case (supra) maintained the rate of Rs. 15/ per square yard by dismissing the appeal filed by the claimants as well as by the State. The learned Additional District Judge found as a fact after discussing the entire evidence that the area of Gobindpura fell within the municipal limits of Jagadhri. Similar is the position of the land under acquisition in the present cases which also falls within the Municipal limits of Jagadhri. After making the Award of Gobindpura as the basis, the learned Additional District Judge in R.F.A. Nos. 2519, 2520, 2555, 2556, 2567 and 2568 of 1987 gave an increase of Rs. 5,000/ per acre and determined the market value at Rs 77, 600/ per acre. On the other hand, the learned District Judge while dealing with the Award of Gobindpura has made the same as the primary basis and has given 10 per cent increase and determined the market value of the acquired land at Rs. 79,860/ in R.F.A. Nos. 671 to 683, 805, 948, 1152, 1174 and 1109 to 1116 of 1988.

Shri H.L. Sibal, Senior Advocate learned counsel for the land owner claimants has vehemently argued that the land acquisition Court has erred in law in placing reliance upon the Award of Gobindpura Exhibit R.11 in preference to various sale deeds by which several parcels of land in Garhi Mundo were sold. His precise argument is that once comparable sales visavis the acquired land have been brought on the judical record, the award forming part of determination of the land of Gobindpura should not have been relied upon. During the course of arguments, the learned counsel has submitted various formulae for determining the market value of the acquired land. My attention was pointedly drawn to the two sale transactions Exhibits A.W. 8/1 and A. W. 12/1 which are out of the acquired land and it was suggested that the average price of these sale transactions could be made the basis for evaluating the market value of the acquired land. There was yet another formula suggested by the learned counsel, that the average price of all the sale transactions prior to the issuance of the notification should be determined in the first instance and then this Court could apply the necessary cut as has been ruled in various judicial pronouncements of the Supreme Court and other High Courts. On the other hand, the learned State counsel has strenuously argued that transactions of sale need not be made the basis for determination of the market value of the acquired land because the land acquisition Court while determining the market value has given the necessary increase after taking into consideration the Award Exhibit R. 11. He has further argued that the Award Exhibit R. 11 was relevant under Section 23 of the Act. While elaborating the argument, it has been urged that the Award given by another Court has by and large the binding effect upon the Courts subsequently dealing with other matters and in any case once an Award is cited as an instance, it has got that much evidentiary value which should ordinarily exclude the consideration of other sale deeds.

Before applying one formula or the other, it has became essential for this Court in the first instance to settle question of law which has arisen and which, as far this Court is concerned, appears not to have been settled until now. No judicial pronouncement of this Court was cited on the point as to whether the Award under the provisions of the Land Acquisition Act can be said to be that much binding on this Court that it cannot and should not rely upon the sale transactions of that very village and vicinity where the land is acquired. Call the fate of landownerclaimants be said to be sealed by an Award to which they were not parties ? Is the Award of the Court only relevant leaving the parties to ask the Court in another matter to determine the market value of their acquired land on the basis of the sale deeds brought on the record by them or is it that their sale deeds cannot be examined ? In other words, should the Award of the Court be preferred over the sale deeds brought by the landowners in a given case ? To put it in others words, should the Court prefer the Award over the sale transactions produced in the very case, the Court is called upon to examine or is it that the landowners can legally tell the Court that the evidence brought by them should be preferred over the Award.

After giving my thoughtful consideration to the questions which stare this Court, I ma of the considered view that the valuation in the stare this Court, I am of the considered view Award though very important and relevant will not bind the claimants in another case. The claimants can takes advantage for determination of compensation on the basis of the sale deeds which they have brought on the record of the case. They cannot be debarred from leading superior evidence or evidence of the nature of such transactions of sale as can be more comparable in valuation of the acquired land than the Award of the Court. Such claimants can surely show the Court that their lands have got better potential and that they are entitled to the determination of the market value on the basis of the sale deeds which they have produced on the record of a particular case. It has commonly been seen that some litigants are not careful and rather they may be negligent in producing evidence. On the other hand, the other persons take a keener interest in pursuing the cases before the Courts of law. If such persons are told that well, their lands would also be evaluated on the same rate which has already been determined, it would amount to denying them the right of hearing. In other words, they would be condemned unheard.

In my opinion the Award of the Land Acquisition Court or of the Collector does not bind the parties and that the same can be only said to be relevant and can also be taken advantage of if no other evidence of comparable sales is available for determining the market value of a particular piece of land. The matter can be examined by the Court from another angle as well. If the Courts were to consider the Award within the ambit and meaning of Section 23 of the Act as finally conclusive, such a view would come in conflict with settled principles of law laid down by various judicial pronouncements. It has been settled by the Apex Court and other Courts in a plethora of authorities that determination of compensation for compulsory acquisition is governed by Section 23 of the Act. For determination of such compensation the main criteria would be that a willing vendee would pay to a willing vendor. In other words, the compensation has to determined by reference to the price which a willing vendor might reasonably expect to obtain from a willing purchaser. The market value of the acquired land on the date of the notification has to be seen and this can only be done if the market value of that very acquired land is determined by a Court of law on an examination of comparable sales. If the parties before a Court of law are tagged on the Awards only, the basic principles as envisaged in Section 23 of the Act would be negated. However, this view of mine does not and cannot mean that the Awards given by the Courts can be dismissed as inadmissible or irrelevant. The Awards are relevant for determination of market value of another piece of land if they are comparable but they cannot be held to be legally binding. The award, although, is relevant and admissible yet the same does not bind the parties. It does not have that much evidentiary value either that it would exclude consideration of other sale transactions which are more comparable visavis the acquired land. The Court of law while examining the Award and the sale transactions would scrutinize as to whether the Award rendered either by the Collector or by the Court is more comparable or the sale transactions are more comparable. The Award can be easily described to be a judicial document given by a Court upon examination of the sale transactions and other evidence made available to it by the parties. It can be cited as an instance to be followed by another Court provided better evidence of comparable nature qua the acquired land is not available. It cannot be cited as a precedent as has been so held by a Division Bench of Mysore High Court in Additional Special Land Acquisition Officer, Mangalore v. P. Anantha Bhat, AIR 1972 Mysore 313. Their Lordships of the Mysore High Court went to the extent of describing the Award to be a piece of evidence. The relevant observations of the Division Bench can conveniently be reproduced as under :

"It is now fairly established that in matters relating to land acquisition, a judgment of a Court in regard to similar lands or properties would be a relevant piece of evidence. This is not to say that such a judgment is binding as a precedent. The Award in L.A. case is essentially a decision on a question of fact depending on the facts and circumstances of such case, unless a question of law or principle has been settled therein. Whenever such a judgment is sought to be used as a piece of evidence, it must satisfy the usual test of relevancy and application to the facts and circumstances of the case in which it is relied on."

At this stage it would be appropriate to have a look at the other case law relevant to the determination of the point debated before me. It appears from the view taken by the Bombay High Court in Special Land Acquisition Officer, Bombay v. Lakshmi, Ghelabhai, AIR 1960 Bombay 78 that a judgment not inter parties in land acquisition matters is neither admissible in evidence nor the same can be used as an instance for determination of the market value. It has been observed therein that a judgment cannot fall under Sections 40 to 43 or under Section 11 or Section 13 of the Evidence Act. However, the Apex Court in the Land Acquisition Officer, City Improvement Trust Board v. Narayanaiah and others, (1976) 4 Supreme Court Cases 9 observed that it was not necessary to take so restrictive a view of the provisions of Sections 11 and 13 of the Evidence Act as to exclude such Judgments altogether. While referring to another decided case by three Judges of Andhra Pradesh High Court, the Apex Court observed that such judgments were relevant if they relate to similarly situated properties and contain determination of value on dates fairly proximate to the relevant date in case. The following observations of the Apex Court are quite relevant in this context :

".... We do not think it necessary to take so restrictive a view of provisions of Section 11 and 13 of the Evidence Act to exclude such judgments altogether from evidence even when good grounds are made out for their admission. In Khaja Fizudin v. State of Andhra Pradesh, C.A. No. 176 of 1962 decided on April 10, 1963 a Bench of three Judges of this Court held such judgments to be relevant if they relate to similarly situated properties and contain determination of the value on dates fairly proximate to the relevant date in case."

A Division Bench of Orissa High Court in Chintamani Sahu v. Collector, Cuttak, AIR 1979 Orissa 76 also took the view that a landowner can take advantage of the determination of compensation made in another case but he cannot be debarred from leading superior evidence. The following are the observations of their Lordships :

"The valuation of Ext. 1 though relevant, will, however, not bind the appellant, because though it is a decision of a similar dispute between the respondent and another claimant with reference to evidence there led, the present appellant was not a party to it. Therefore, though the appellant can take advantage of the determination of compensation made there, he cannot be debarred from leading superior evidence of market value and of other factors pertinent to the question of valuation to claim a higher rate of valuation than the one determined in Ext. 1."

In view of the above mentioned discussion, the following principles can be enunciated :

(1) The market value of a particular piece of acquired land can be determined by keeping in view only one and one principle, namely that the market value has to be such, which a willing vendor might reasonably expect to obtain from a willing purchaser.

(2) For determination of such valuation, the Court should take into consideration the Awards given by the Collector or by the Court besides other documentary and oral evidence.

(3) The Awards are only relevant and admissible and cannot be binding upon the parties.

(4) The Awards do not have that much evidentiary value that they can shut out consideration of other evidence of comparable nature.

(5) The parties to a proceeding for fixation of compensation can always insist that the Awards be ignored and the valuation be determined on examination of evidence brought by them.

(6) The Award can be described to be a legal document whether given by the Land Acquisition Collector or by a Court containing determination of valuation after examination of several sale deeds and, therefore, such Award is an instance meant to be considered by another Court like any other instance of sale and it cannot be described to be a precedent for determination of valuation of another matter or even pertaining to same notification at a subsequent stage provided more and superior evidence is forthcoming in the case which is being decided by it subsequently.

(7) The Courts while determining the market value of a piece of land are at liberty either or follow the Award or to rely upon the sale deeds whichever is more comparable visavis the acquired land.

In the view which I have taken above, I am inclined to take into consideration the very sales and other evidence relating to this very village Garhi Mundo. The following is the chart of the sale deeds relied upon by the claimants before Additional District Judge. These very sale deeds may be with different exhibits, were discussed by the District Judge.

S. No.

Exhibit

Area sold

Date of Sale

Sale consideration

Average rate per acre.

1.

Ex. AW. 7/1

7 Biswas

24.6.68

Rs. 10,000/

Rs. 1,64,240/

2.

Ex. A. 6/2

8K 5M

13.12.79

Rs. 97,968/

Rs. 95,000/

3.

Ex. AW. 18/1

2B 2B

25.5.79

Rs. 1,05,500/

Rs. 2,41,142/

4.

Ex. AW. 5/1

16 Biswas

26.3.80

Rs. 25,000/

Rs. 1, 50,000/

5.

Ex. AW. 8/1

8B 12B

28.3.80

Rs. 1,57,260/

Rs. 87,767/

6.

Ex. AW. 10/1

17 Biswas

23.1.80

Rs. 47,000/

Rs. 2,65,411/

7.

Ex. AW. 12/1

11 Biswas

8.2.80

Rs. 15,000/

Rs. 1,37,240/

8.

Ex. AR.

8B 12B

24.7.80

Rs. 1,57,250/

Rs. 87,767/

9.

Ex. A.T.

61/2 Biswas

17.8.79

Rs. 26,000/

Rs. 4,41,080/

10.

Ex. AW.

14/1 61/2 Biswas

14.5.84

Rs. 47,000/

Rs. 6,99,330/

11.

Ex. A.S.

7B 17B

27.11.84

Rs. 8,91,233/

Rs. 5,44,958/

12.

Ex. Q.

2639 sq. yds

22.1.85

Rs. 3,37,800/

Rs. 9, 68,000/

The sale deeds mentioned at Serial Nos. 10, 11 and 12 are liable to be excluded from consideration on the short ground they are post dated notifications. The sale deeds mentioned at Serial Nos. 1, 4, 6, 7 and 9 do not also deserve to be taken into consideration as they pertain to the sale of too tiny plots measuring 7, 16, 11 and 61/2 Biswas respectively. After excluding from consideration the aforementioned sale deeds, this Court is left with consideration of sale deeds mentioned at Serial Nos, 2. 3, 5 and 8. Exhibit A. 6/2 pertains to 8 Kanals 5 Marlas of land which can, be taken into consideration the same being the sale transaction relating to more than one acre of land. Exhibit A.W. 18/1 relates to 2 Bighas 2 Biswas of land which is about half acre. Exhibit A.W. 8/1 pertains to 8 Bighas 12 Biswas of land, that is, more than 11/2 acres. Again Exhibit A.R. has to be taken into consideration because it relates to 8 Bighas 12 Biswas of land which is more than 11/2 acres. The average sale price of all the four transactions of sale comes to Re. 1,27, 919/ per acre. After applying a cut of 1/4th, the market value of the acquired land comes to Rs. 95.940/ per acre which can be rounded off at Rs. 96,000/ per acre. Normally I would have applied 1/3rd cut 1/4th cut is being applied for various reasons given hereinafter. Firstly, four sale deeds being relied upon pertain to sizable pieces of land. Secondly, Exhibit A.W. 8/1 is a sale transaction from the acquired land itself, a fact not disputed before me, it has to be borne in mind that the land is situated within the urban area of twin cities of Jagadhri and Yamuna Nagar. In fact, the Land Acquisition Court has noticed the high potential value of the acquired land. It abuts on JagadhriYamuna Nagar Bypass. It is in the close proximity of Grain Market, Vegetable Market & Fodder Mandi which has taken shape on the Bypass. A large number of commercial establishments have come up in close proximity of the acquired land. All the sale deeds which I have taken into consideration are from Garhi Mundo area itself. Even R.W. I Som Nath Kanungo has admitted the existence of factories and residential establishments in the area of Garhi Mundo. In fact, the statement of A.W. I Rajinder Pal can be quoted in extenso as regards the potential value of the land. His statement runs as follows :

"The acquired land is at a distance of half kilometre from the road. Swastika Metal, Shiv Shankar Metal, Shiv Shakti Metal, Garg Metal and some other factories are situated along this road. There are shops also on this road. The road which goes to Garhi Mundo is 20 feet wide. It then merges into the Bypass and goes further to Yamuna Nagar. The acquired land falls on both side of the road. Mohan Nagar, Nai Basti, Jain Nagar, Radha Swami Satsang Colony fall along the acquired land. Mohan Nagar and the acquired land have common boundaries. The Hindu School is at a distance of 200 yards from the acquired land. A road divides the Bus Stand, Yamuna Nagar and the acquired land. The road is 25 feet wide. On the road which goes from Bus Stand, Jagadhri to Yamuna Nagar, Jagan Nath Metal, J.K. Metal, Star Engineering etc. are located. The road which connects the Bus Stand with Jagadri Bypass falls in the revenue estate of Garhi Mundo. The market value of the acquired land in the year 1980 was Rs. 80/ per acre, again said, Rs. 80/ per sq. yard. A number of sales took place before the date of notification u/s 4. The market rate of the acquired land today is Rs. 250/ per sq. yard."

To the same effect are the statements of other claimants. Nothing could be elicited from their crossexamination as regards the location of the land. For these three reasons deduction of 1/4th is being applied.

The Award Exhibit R. 11, that is, of village Gobindpura, cannot be said to be comparable for certain reasons. The Court while determining the market value of the acquired land in village Gobindpura was dealing with the notification dated 25.9.1979 whereas I am dealing with notification dated 28.9.1989. It can also be assumed that there was development after the acquisition of the land of village Gobindpura which took place one year earlier. Moreover, the land of village Gobindpura fell within the municipal limits of Jagdhri whereas the present acquired land falls within the twin cities of Jagadhri and Yamuna Nagar. This being the factual position, the Award Exhibit R.11 cannot be described to be that much comparable visavis the acquired land in preference to the sale deeds which have been relied upon by me.

In my considered view no other formula as suggested by Mr. Sibal for determining the market value of the acquired land would be more suitable. I am not inclined to make Exhibits A.W. 8/1 and A.W. 12/1 the two sales of the acquired land as the sole basis for determination of the market value because Exhibit A.W. 12/1 is a sale transaction pertaining to a piece of land which is of a very small size, that is, measuring 11 Biswas only. A.W. 8/1 has already been taken into consideration while evaluating the acquired land. The average price of all the sale transactions should not also be taken into consideration for the simple reason that some sale transactions, that is, Exhibits A.W. 7/1, A.W. 5/1, A.W. 12/1 pertain to small areas of land.

In consequence of the discussion above, I determine the market value of the entire acquired land at Rs. 96,000/ per acre. However, the landownerclaimants who purchased the lands and which have been acquired would be entitled to the grant of compensation at that very price which they have paid including the registration charges. The appeals filed by the landownersclaimants are, therefore, allowed with proportionate costs. They are also held entitled to the statutory benefits of the amended provisions of Section 23(1A), 23(2) and 28 of the Act. Two months'' time is granted the claimant to make the deficiency in court fee, if any.