Jai Kaur (died) vs State of Punjab

V.K. Bali, J.

As common questions of law and fact are involved in all these Letters Patent Appeal Nos. 84 to 98, 154, 195 to 205, 263 to 270, 380, 376, 1290 to 1292 of 1991, we propose to decide all these matters by common judgment. The bare minimum facts that need a necessary mention, have, however, been extracted from L.P.A. No. 84 of 1991.

The appellants (hereininafter referred to as ''the claimants'') succeeded in getting uniform rates for the entire land irrespective of nature and quality thereof before the learned Additional District Judge, who vide his order dated November 20, 1987, worked out the market value of the acquired land @ Rs. 1,01,000/ per acre, thus, substantially varying the award of the Land Acquisition Collector dated February 22, 1984, who in turn had categorised the land into three categories, namely A, B and C. Whereas the Land Acquisition Collector had assessed Rs. 80,000/ per acre for the land in Category A, categories B and C were assessed at Rs. 52,000/ and Rs. 35,000/ per acre respectively. The claimants have further been successful in getting a substantial increase in compensation when the learned Single Judge enhanced it from Rs. 1,01,000/ per acre to Rs. 37/ per sq. yard vide judgment dated April 9, 1990. It is in their endeavour to get Rs. 55/ per sq. yard as market value of the acquired land that the present appeals under Clause X of the Letter Patent have been filed.

Vide notification dated May 5, 1982, issued under Section 4 of the Land Acquisition Act, 1894 (for short ''the Act'') 115 Acres, 5 kanals and 14 marlas of land was notified to be acquired for a public purpose, namely, for establishment of New Mandi Township, Kotkapura. The followup declaration under Section 6 was issued on January 19, 1984. The outcome of references made under Section 18 by the claimants and further appeal preferred by them has since been noted above.

Before we might comment upon the contentions raised by learned counsel for the claimants, it is necessary to mention that while dealing with the potential of the land so as to be converted into residential and commercial use, learned Additional District Judge returned a firm finding of fact that the acquired land was within the Municipal limits of Kotkapura and had a petrol pump, abadi and bus stand in the near vicinity as shown in Aks. Sajra, Ex. A10. The acquired land shown in Ex. A10 as ABCD, was at the junction of two roads, viz. KotkapuraBathinda road and KotkapuraMoga road whereas there was a kacha passage on the third side. There were shops on both sides of KotkapuraBathinda road, KotkapuraMoga road besides F.C.I. godowns. It was admitted by none other than the witness examined on behalf of the department in his crossexamination that the acquired land was situated at the junction of the roads aforesaid. This finding of the learned Additional District Judge has assumed finality having been upheld by the learned Single Judge and there being no appeal filed on behalf of the respondentState. It also requires to be mentioned here that sale instances, Ex. A29 dated March 12, 1982, vide which land measuring 1 kanal 1 marla was sold for Rs. 25,000/, Ex.A31 dated November 18, 1981, vide which land measuring 1 kanal 7 marlas was sold for Rs. 35,000/ and Ex A68 dated February 19, 1982, vide which land measuring 1 kanal 13 marlas was sold for Rs. 30,000/ as also Ex. A5 vide which land measuring 40 kanals 8 marlas situated in the revenue estate of Kotkapura was sold @ Rs. 50/ per sq. yard came to be focused, both by the learned Additional District Judge and the learned Single Judge. The average sale price of sale instances, Ex. A29, A31 and A68 works out to be Rs. 44.44 per sq. yard. In view of learned single Judge, some cut had to be applied on average sale price of exhibits, referred to above, even though the said cut was not specified and in ultimate analysis while slashing down the price by onethird from the one represented by Ex. A5, claimants were held entitled to Rs. 37/ per sq. yard. As mentioned above, claimants crave for more i.e. Rs. 55/ per square yard. Is this claim justified or, in other words, can the market value be enhanced from the one worked out by the learned Single Judge, is the sole question which needs adjudication in these appeals.

Two fold contentions of Mr. Vinod Kataria, learned counsel for the claimants are that ExA105, vide which bid given by Madan Lal, AW24 was confirmed with regard to plot measuring 20 x 125 feet for Rs. 1,60,000/ in the name of his son Anil Kumar, was not taken into consideration at all as also that even if Ex. A105 was to be ignored, the average sale price of sale instances Exs. A29 to A33, A35, A39, A48 to A54, A57 to 68 which works out to Rs. 116.67 per square yard and which sale instances were between November 16, 1979 to February 9, 1982, i.e. prior to issuance of notification under Section 4 of the Act, were not considered at all either by the learned Single Judge or by the learned Additional District Judge. We have given our anxious thoughts to the contentions raised by learned counsel, noted above. Insofar as sale instance. ExA105 proved by AW24, which pertains to an area of 20 x 125 feet for an amount of Rs. 1,60,000/ dated August 7, 1987 is concerned, learned counsel informs us that the said sale instance is from the acquired land itself. While making the aforesaid contention, it appears, learned counsel lost sight of fact that determination of market value has to be on a date when notification under Section 4 of the Act is issued. It is on that crucial date that it has to be found as to what a willing buyer was prepared to offer to a wililing seller. After acquisition of the land and, particularly, when the same has been developed, it would naturally fetch far more price. A sale instance of more than five years after the date, notification was issued, in our view, would be wholly irrelevant for determining the market value of the land in question. Insofar as sale instance, average price of which works out to Rs. 116.67 per sq. yard, are concerned, the same were never relied upon by the claimants. In other words, no arguments were ever raised on the basis of the said sale instances particularly before the learned Single Judge. It is significant to mention that the learned Single Judge held that "before the Additional District Judge, for determining the market value, reliance was placed on sale instance ExA 29, A31A68 and R4". Before the learned Single Judge, no arguments, based upon the aforesaid sale instances were ever raised. It is not pleaded case of the claimants in the memorandum of appeal that such sale instances were pressed into service but the learned Single Judge did not return any finding on the points raised by counsel, based upon the said sale instances. In these appeals, wherein it is permissible to the claimants to primarily base their arguments on law, we are not inclined to go into the contention raised by learned counsel, noted above for the first time. That apart, even though in the chart prepared by the counsel with regard to sale instances aforesaid, date of sale and price per sq. yard has been given to us during the course of arguments but it is still not known nor we have been apprised as to what was the area of the sale instances, relied upon by the claimants'' counsel nor is it known as to where the land representing the aforesaid sale instances was located, visavis the acquired land. It is also not known as to whether these sale instances were proved by examining the vendee or vendors of the same. The contention of the learned counsel based upon these sale instances has, thus, necessarily to be repelled.

As a last resort, learned counsel for the claimants relied upon a judgment of the Hon''ble Supreme Court in Hasanali Walimchand v. State of Maharashtra, 1998(1) LACC 120 : 1998(1) RCR (Civil) 591 (SC), as also Division Bench judgment of this Court in Dayal Singh v. Haryana State, 1998(2) LACC241, primiarily to convince the court that when the land has potential of being converted into commercial or residential use, a cut of 25% on comparable sale instances should represent just and proper market value of the land under acquisition. We do not find any merit in this contention of the learned counsel as well. The facts of Hasanali''s case (supra) reveal that the land under acquisition in the said case did have future potential on account of its location. It was not denied that the area around the city of Ahmednagar was fast developing and the land in question was located only at a short distance of about one and a half miles from Ahmednagar town. That being so, the finding recorded by the High Court to the effect that there was no demand of any urban character in respect of the land in question was held to be not correct. The reference Court had made the award based upon the material on record but had failed to notice that the acquired land was still undeveloped. It is in these circumstances that the order of the High Court was set aside and the one passed by the reference court was restored with the modification that out of the amount fixed by the reference court @ Re. 1/ per sq. foot, deduction to the extent of 50 paise per sq. foot towards development charges should be made. We are afraid the judgment relied upon by the learned counsel would detract from the contention raised by him rather than advancing the same. If the effort of the learned counsel representing the claimants be to derive benefit of this judment with regard to future potential of land, we may only hasten to add that on account of its potential for being converted into commercial, industrial and residential area, entire land has since already been evaluated on the same rates. Obviously, at the time when land was acquired it was undeveloped and it is only for its future potential that the entire land has been evaluated at the same rate.

It is trite proposition of law that the sale of small plots cannot form safe basis for determination of market value of the large tracts of land but when such small plots are comparable in all regards to the land under acquisition, the question of cut then arises. The extent of cut from the price of such sale instance depends on facts and circumstances of each case and there is no straitjacket formula that in every case such a cut should be to the extent of 25%. In Dayal Singh''s case, all that can be made out is that, in the facts and circumstances of that case, a cut of 25% from the comparable sale instances of small areas was applied. Learned counsel for the claimants has not even endeavoured to show that the facts of the case in hand and the one noticed by the Division Bench in Dayal Singh''s case were similar. It rather appears to us that the Division Bench in the case aforesaid, on identity of facts, relied upon a judgment of the Supreme Court to apply a cut of 25%.

The two judgments relied upon by learned counsel for the claimants, in our view, provide no solace to them in their endeavour to ask for more than what has been awarded to them by learned Additional District Judge and further increased by the learned Single Judge.

Mr. Kataria, appearing in support of LPA No. 263 of 1991 as well, with regard to the said LPA, contends that the claimant Romesh Kumar had also asked for enhancement of compensation with regard to superstructure, like others, mentioned in the judgment passed by the learned Single Judge. He was granted Rs. two lacs by the reference court in his Land Reference No. 136 of 1985 as compensation for building and structures. While filing R.F.A. No. 694 of 1988, he had claimed further enhancement with regard to superstructure on the basis of statements made by PW7 Dhanna Singh, Retired SDO who had prepared report, Ex. A15 vide which cost of buildings, outer compound wall and other structure was assessed at Rs. 3,40,150/. The report of AW7 Dhanna Singh was accepted by the learned Single Judge with regard to other claimants and the one prepared by RW2 Sham Kumar Sharma, Building Inspector was rejected. All those, who had claimed compensation with regard to superstructure, basing their claim on reports prepared by Dhanna Singh, AW7 were granted compensation with regard to superstructure as determined by him. However, insofar as claimant Romesh Kumar is concerned, by sheer inadvertence, the number of R.F.A. filed by him was omitted in Part II of the judgment dealing with various others who had claimed compensation with regard to superstructure. The contention of learned counsel is to allow compensation to Romesh Kumar claimant with regard to superstructure as was assessed by AW7 Dhanna Singh. This contention of the counsel could not be controverted by the State counsel. We have ourselves examined the records of the case. We have gone through the statement made by AW7 Dhanna Singh as well as report, ExA15, prepared by him. It is true that, while dealing with other claimants who had claimed more compensation with regard to superstructures, in PartII of the Judgment, number of RFA filed by Romesh Kumar was omitted. In view of uncontroverted facts, as fully detailed above, insofar as Romesh Kumar is concerned, he deserves to have compensation with regard to superstructure at Rs. 3,40,150/.

In view of the discussion made above, all other LPAs, except LPA No. 263 of 1991 are dismissed. LPA No. 263 of 1991 is partly allowed. Romesh Kumar claimant of LPA No. 263 of 1991 in addition to what has been granted by the learned Single Judge, shall also be entitled to compensation of Rs. 3,40,150/ with regard to superstructure along with other benefits under the Land Acquisition Act as amended, as allowed by the learned Single Judge. Parties are left to bear their own costs.