Sahi Ram vs State of U.P. and Others

Amitava Lala, J.—Since all the aforesaid first appeals are arising out of selfsame judgement and award dated 24th August, 1992 passed by the Court of reference, the same have been heard analogously and are being decided by this common judgement having binding effect in all the appeals, taking First Appeal No. 399 of 2009 as leading one.

In brief, the facts giving rise to the aforesaid appeals are that a gazette notification No. 2932/18487(Kha)87 Lucknow, dated 13th October, 1987 under Section 4 (1) of the Land Acquisition Act, 1894 (hereinafter in short called as the ''Act'') was published on 19th October, 1987, publication of which in two newspapers, namely, Dainik Hint and Dainik Pralayankar was done on 20th November, 1987 and 21st November, 1987 respectively and public notice of the substance of such notification was given on 11th March, 1988. The aforesaid notification was issued for acquiring the land having a total area of 35/35 bighas situated in Village Mamura, Pargana and Tehsil Dadri, District Ghaziabad for the purpose of development of project of Sectors59 and 60 of New Okhla Industrial Development Authority, Ghaziabad (hereinafter in short called as the ''NOIDA''). In the said notification it was provided that since the land is urgently required, provisions of Section 17 (1) & (1A) of the Act will be applicable but not Section 5A of the Act. In respect of the aforesaid notification, a corrigendum gazette dated 24th December, 1987 was also issued, public notice of substance whereof was given on 08th December, 1988. Gazette notification under Section 6 (1) of the Act dated 06th July, 1988 was also published on 08th July, 1988, whereas publication thereof in two newspapers, namely, Dainik Pralayankar and Dainik Hint as well as public notice of the substance thereof were done on 28th July, 1988, 29th July, 1988 and 20th August, 1988 respectively. After issuance of the aforesaid notifications, opportunity to file objection was given to the land holders under Section 9 of the Act regarding measurement and rate of compensation, fixing 05th September, 1988 for hearing. Thereafter, after payment of 80% amount the possession of land for an area of 356195 bighas was handed over to the NOIDA on 24th December, 1988.

As recorded by the Special Land Acquisition Officer, NOIDA, Ghaziabad (hereinafter in short called as the ''SLAO''), no agreement to sell was produced by any of the land holders before the SLAO. For the purpose of determining the amount of compensation, the SLAO called for the saledeeds executed within a period of three years from the date of last publication of Section 4 (1) of the Act from the office of SubRegistrar, Dadri, during which period total 20 saledeeds were found to be executed. The SLAO for some reason or the other discarded 19 saledeeds and took the saledeed at Sl. No. 20 to be the appropriate for forming basis to determine the amount of compensation. This saledeed/agreement to sell was executed before five months from the last date of publication for an area of 300 square yard at the rate of Rs.50/ per square yard. The land under this saledeed was also falling within the acquired area. On the aforesaid basis the SLAO by its award dated 30th June, 1990 awarded compensation of the land at the rate of Rs.50/ per square yard for those land holders whose area is below 8 acre, whereas for those land holders whose land area is more than 8 acre, awarded compensation for the land at the rate of Rs.37.50 per square yard by making deduction of 25%. SLAO also awarded solatium @ 30% of the compensation for land, 12% additional compensation from the date of last publication of notification under Section 4(1) of the Act i.e. 12th March, 1988 till the date of taking over possession on 24th December, 1988, interest @ 9% for one year and 15% after one year, and other compensations for house and well etc.

Against the aforesaid award the claimantsland loosers proceeded before the Court of reference under Section 18 of the Act saying that their objections have not been considered on merit and the award is erroneous. SLAO has not considered the utility, potentiality and situation of the land. The land is situated only at a distance of two kilometres from Delhi border and the nearby area of which has already been developed residentially and industrially and is also developing very fast. The land is situated within the regulated area of NOIDA and is full of potential value. NOIDA itself has decided to pay compensation @ Rs. 90/ per square yard for the land situated in village Makanpur, which was acquired with the claimants'' land situated in Village Mamura, whereas land of the claimants is in much useful position than that of said village. NOIDA itself is selling the adjacent lands @ Rs. 850/ and Rs. 1250/ per square meter for industrial and residential purposes respectively and since the NOIDA is an institution regulated by the State Government, therefore, it should sell the land without any loss and gain. Since the land in question comes within the regulated area, therefore, either saledeed is not executed or the saledeed is executed at a lower rate in order to save the stamp duty. SLAO has not taken into account the saledeeds of other villages i.e. Makanpur and Khoda, due to which compensation could not be determined at the market rate in accordance with law. Against this background, the claimantsland loosers demanded compensation for the land @ Rs.200/ per square yard and other compensations at the enhanced rate.

In the reference, the defendants (SLAO and NOIDA) have filed their composite written statement denying the averments made by the claimants saying that the reference is against the law and facts, vague, false, and being barred by time is not maintainable. The allegations made in the reference are wrong. The claimants have accepted the award and have received the amount of compensation without protest. The SLAO has well considered all the surrounding circumstances prevailing at the time of acquisition. The land under acquisition, at the time of publication under Section 4 (1) of the Act, was located in a secluded and remote area being completely devoid of even very basic amenities. Land was being used for agricultural purposes in a very primitive and traditional manner yielding hardly one crop. There was no source of irrigation. Land is acquired for different purposes i.e. industrial, residential, commercial, institutional and other purposes. Depending upon use, location of plot and phase, the lands are sold at the rate ranging in between Rs. 2504000 per square meter. Out of total acquired area only 50% land remains available for allotment after leaving the area for roads, parks, etc. etc. It is also contended that for proper development of the acquired area at least three years period is needed while payment of compensation is made in advance, during which period the authority does not derive any income from the land, but on the other hand suffers from loss of interest to a tune of 1415% per annum on such huge amount. Allotment is not made in one group but is made gradually that too in instalments, which take several years. Further, the claimants have failed to establish the requisite grounds and desired evidences in support of their contentions, therefore, the reference is liable to be rejected with costs. The Statedefendant had also filed its written statement taking almost similar pleas.

Before the Court of reference, oral evidence of P.W.1 Fateh Singh was adduced on behalf of the claimants who stated that the colonies of Delhi are at a distance of about 1 Km. from the acquired land and Indirapuram and Vaishali, the prestigious colonies of Ghaziabad Development Authority, are also at a distance of 1 or 1 � Km. from the land in question. Sector Nos. 59 & 60 of NOIDA are covered out of acquired land. Master Plan Road Nos. 2 & 3 pass through this land. Prices in the village are increasing after the acquirement. This statement has not been denied by the defendants either in the crossexamination or in the statement of defence witness. The Court of reference recorded that there is no reason why the statement of P.W.1 Fateh Singh be not accepted and further came to the conclusion that the evidence shows that the acquired land is full of building potentiality and also for future urban use.

Apart from aforesaid oral evidence, the claimants also adduced before the Court of reference copies of the saledeed dated 21st January, 1988 (paper No. 14C) pertaining to Village Khoda, award dated 01st February, 1991 (paper No. 18C) given by the SLAO regarding village Khoda Dwitiya, saledeed dated 09th December, 1987 (paper No. 15C) regarding the land of Village Mamura, and judgement dated 30th May, 1992 (paper No. 12C) passed in L.A.R. No. 279 of 1991 regarding Village Mamura.

So far as saledeed dated 21st January, 1988 (paper No. 14C) is concerned, this was executed for a land measuring 400 square yards of Village Khoda @ Rs.125/ per square yard, regarding which the Court of reference recorded that since this saledeed pertains to adjacent village having been executed after nine months from the date of notification under Section 4 (1) of the Act i.e. 18th April, 1987, therefore, when the saledeed of selfsame village is available and in view of the ratio of the judgement reported in AIR 1974 Patna 224 (Harbans Narayan Singh and another Vs. State of Bihar) that sale of land even two months after the notification can not be considered of much value and sales more than six months after the notification should be ignored, this saledeed relied upon by the claimants being irrelevant can not be considered for arriving at the market rate for the land in question. With regard to the award dated 01st February, 1991 (paper No. 18C) given by the SLAO regarding the village Khoda Dwitiya, the Court of reference discarded this evidence also on the grounds that the land under such award was acquired through the notification dated 17th March, 1988 i.e. about one year after the acquisition of the land in question and this award also relates to adjacent village. So far as saledeed dated 09th December, 1987 (paper No. 15C) is concerned, it is recorded by the Court of reference that this saledeed relating to the same village i.e. Mamura was executed for an area of 500 square yards @ Rs. 71/ per square yard after more than eight months from the date of notification under Section 4 (1) of the Act i.e. 18th April, 1987, therefore, in view of the ratio of Harbans Narayan Singh (supra) and statement of P.W.1 Fateh Singh this saledeed can not be considered for arriving at the market value of the land. Regarding the judgement dated 30th May, 1992 (paper No. 12C) passed in L.A.R. No. 279 of 1991 for the same village i.e. Mamura, whereby compensation was awarded @ Rs.71/ per square yard, the Court of reference discarded the same on the ground that notification under Section 4 (1) of the Act under the said reference proceeding was dated 28th August, 1988 i.e. after about 16 months of the notification regarding the land in question, therefore, the same can not be basis for arriving at market value prevailing at the relevant point of time. Ultimately, the Court of reference came to the conclusion that the claimantsland loosers failed to discharge the burden to prove that the compensation awarded by the SLAO is inadequate, and by its judgement and award dated 24th August, 1992 dismissed the land acquisition references of the claimants.

Aggrieved against the aforesaid judgement and award of the Court of reference dated 24th August, 1992, the claimants filed the present first appeals seeking the relief to enhance the rate of compensation from Rs. 50/ to Rs.71/ per square yard, whereas in two appeals by way of amendment application it has been claimed for Rs.79/ per square yard.

Mr. D.V. Singh, learned Counsel appearing for the appellants, submitted that the Court of reference has erred in discarding the exemplars relied upon by the claimants in respect of the selfsame village on the ground that the same are postnotification treating the date of notification under Section 4 (1) of the Act as 18th April, 1987. According to Mr. Singh, market value of the acquired land is to be determined on the last date of publication of notification under Section 4 (1) of the Act, which in the present case is either 11th March, 1988 (date of public notice of notification under Section 4(1) of the Act) or 08th December, 1988 (the date of public notice of corrigendum of such notification). Against such submissions, Mr. Ravi Shankar Prasad, learned Additional Chief Standing Counsel appearing for the Staterespondents, contended that in view of Section 4 (1) of the Act, along with Uttar Pradesh Amendment made in 1974, causing of substance of public notice by the Collector will not be application to a case where the notification has been issued under Section 4 (1) read with Section 17 of the Act dispensing with the provisions of Section 5A of the Act, like the present one. Therefore, merely because of giving public notice by the Collector, the date of public notice will not be taken into consideration for determining the market value. He further submitted that first notification can only be superseded or cancelled by the subsequent notification and in this case no subsequent notification has been issued, therefore, date of the notification i.e. 19th October, 1987 will be same and the corrigendum will have no relevance.

According to us, admittedly the gazette notification under Section 4 (1) of the Act for the respective lands is dated 19th October, 1987. The notification has shown urgency clause to invoke the provisions of Section 17 of the Act, whereunder special powers are given in case of urgency. For the purpose of invocation of this provision, hearing of objections under Section 5A of the Act was dispensed with. Hence, no scope of hearing of objection of the land loosers against the notification under Section 4 (1) of the Act was available to the land loosers. Therefore, they had to wait till the date of hearing applications under Section 9 of the Act on 05th September, 1988 that too for the limited purpose of measurement of the spot and payment of compensation. In such circumstances, applicability of common sense principle even for the postnotificational period under Section 4 (1) of the Act can not be avoided. Various formulas have been prescribed by the Supreme Court in AIR 1988 SC 1652 (Chaimanlal Hargovinddas Vs. Special Land Acquisition Officer, Poona and another). One of the important formulas is that the market value of the land under acquisition has to be determined as on the crucial date of publication of the notification under Section 4 (1) of the Act (dates of notifications under Sections 6 and 9 of the Act are irrelevant). When the other formula is that even postnotification instances can be taken into account (i) if they are very proximate, (ii) genuine, and (iii) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects.

Such notification under Section 4 (1) of the Act was published in the newspapers on 20th November, 1987 and 21st November, 1987. Immediately thereafter on 27th November, 1987 a corrigendum was notified. On 11th March, 1988 public notice of the substance of notification under Section 4 (1) of the Act for acquisition of land was communicated to the public at large in the locality. Notification under Section 6 of the Act was published in the gazette on 08th July, 1988 and in the respective newspapers on 28th July, 1988 and 29th July, 1988. Public notice of the substance of such notification was communicated to the public at large in the locality on 20th August, 1988. On 08th December, 1988 the substance of corrigendum under Section 4(1) of the Act was spread in the locality by the District Magistrate/Special Land Acquisition Officer. The possession of the land was taken on 24th December, 1988.

Further, in this backdrop it is to be seen that in respect of selfsame village on the basis of the similar saleexemplar in L.A.R. No. 279 of 1991 and notification under Section 4 (1) of the Act dated 28th August, 1988, the Court of reference has fixed the compensation @ Rs.71/ per square yard by its award dated 30th May, 1992 but the Court of reference in the present case has totally ignored the evidential value of such proceeding and arrived at the compensation on the basis of the rate available five months before the date of publication of original notification under Section 4(1) of the Act i.e. on 19th October, 1987. Against this background, we do not find any logical conclusion on the part of either SLAO or the Court of reference to ignore the similar claim of the claimants.

From the aforesaid discussions four important aspects can be inferred. Firstly, though the notification under Section 4 (1) of the Act was notified in the gazette on 19th October, 1987 but the same was published in the newspapers on 20th and 21st November, 1987 and it was communicated to the public at large on 11th March, 1988. Similarly, corrigendum was notified on 27th November, 1987 but it was published on 08th December, 1988. Therefore, variable rates in between such period can not be rigidly or absolutely fixed on the date of gazette notification under Section 4 (1) of the Act i.e. 19th October, 1987. Secondly, there is a lot of difference in proceedings under Section 5A and Section 9 of the Act. Under Section 5A of the Act, a land looser can get his total opportunity to raise his objection, wherein under Section 9 it is limited to measurement of the land and payment of compensation. Hence, there is a possibility of unequal bargain. Thirdly, evidential value of the decision in a matter in respect of selfsame village and similar sale exemplar to the extent of Rs.71/ per square yard arising out of notification under Section 4 (1) of the Act being dated 28th August, 1988 should not have been ignored. Finally, the development prospects of the area are required to be taken into account in view of the various recent Supreme Court judgements.

Recently, we have delivered a judgement on 17th November, 2009 in First Appeal No. 250 of 2000 (New Okhla Industrial Development Authority, NOIDA, Ghaziabad Vs. Desh Raj and others), along with connected first appeals, and held that when the entire area is in a stage of development and the different villages are capable of being developed in the same manner having its similar potential or commercial exploitation and the same can be consolidated as a single unit, no basic difference will be applicable. Therefore, this Division Bench was pleased to fix the compensation @ Rs.108/ per square yard in respect of Village Rasoolpur Nawada, which is almost similarly placed with Villages Makanpur and Khoda. This village in question herein i.e. Mamura is just behind all the aforesaid villages as per the sketch map, which has become part and parcel of the judgement delivered in such matters. The relevant part of the aforesaid judgement, in which several Supreme Court judgements have been considered, is quoted hereunder:

"In 2008 (11) SCC 65 : 2008 (4) Supreme 174 [State of Haryana Vs. Gurbax Singh (Dead) by Lrs. & anr. etc.] it has been considered by the Supreme Court that commercial potentiality of the land is important factor for deciding compensation of land under acquisition based on another Supreme Court judgement reported in 2005 (12) SCC 564 (Union of India Vs. Hannder Pal Singh and others). The relevant portion of Hannder Pal Singh (supra) as relied upon by the Supreme Court in Gurbax Singh (supra) is as follows:

".......From the sketch plan of the area in question, it appears to us that while the lands in question are situated in five different villages, they can be consolidated into one single unit with little to choose between one stretch of land and another. The entire area is in a stage of development and the different villages are capable of being developed in the same manner as the lands comprised in Kala Ghanu Pur where the market value of the acquired land was fixed at a uniform rate of Rs.40,000/ per acre."

It was further held by the Supreme Court that all the lands involved in the acquisition proceedings had similar potential for commercial exploitation and could be consolidated into a single unit where the process of development and improvement had already commenced. There was little to differentiate between the lands comprised in either of the villages. The lands are abutting to a developed town and can easily be said to be part and parcel of such town having great potential.

Again in 2009 (4) SCC 402 [Mummidi Apparao (Dead) through LRs. Vs. Nagarjuna Fertilizers and Chemicals Limited and another] the Supreme Court has given an emphasis over the location and development all around and its full potential value of developing into housing sites and fast taking up the character. In 2008 (14) SCC 745 (General Manager, Oil and Natural Gas Corporation Limited Vs. Rameshbhai Jivanbhai Patel and another) the Supreme Court held that primarily, the increase in land prices depends on four factors: situation of the land, nature of development in surrounding area, availability of land for development in the area, and the demand for land in the area. In rural areas, unless there is any prospect of development in the vicinity, increase in prices would be slow, steady and gradual, without any sudden spurts or jumps. On the other hand, in urban or semiurban areas, where the development is faster, where the demand for land is high and where there is construction activity all around, the escalation in market price is at a much higher rate as compared to rural areas. In 2009 (4) SCC 719 (Faridabad Gas Power Project, National Thermal Power Corporation Limited and others Vs. Om Prakash and others) close vicinity of the planned development area was determined as one of the factor for fixation of higher compensation. Thus, these judgements are supporting the contention of the land loosers."

In view of the discussions made above, we are of the view that the judgement and award dated 24th August, 1992 passed by the Court of reference, as impugned in the present appeals, is liable to be set aside and is hereby set aside. The claimants/appellants are entitled to compensation for their land @ Rs.71/ per square yard. At such enhanced rate, the claimantsappellants will get the balance amount of compensation preferably within a period of three months from the date of communication of this order.

Accordingly, the appeals of the claimants are disposed of without imposing any cost.

The substitution application/s, if any, pending in any of the first appeals are allowed upon condoning the delay, if any, as well as upon setting aside abatement, if any, without imposing any cost. The formalities will be completed by redink as early as possible and the order, which has been passed hereunder, will be binding upon the substituted parties. In some of the appeals, deficiency of court fees has been made good with an application for taking the same on record upon condoning the delay. Such applications are also allowed upon condoning the delay, however, without imposing any cost. In view of the aforesaid, the amendment applications filed in First Appeal Nos. 836 of 1999 and 601 of 1998 seeking enhancement of compensation for the land more than Rs.71/ per square yard are rejected without imposing cost.

So far as First Appeal Nos. (505) of 1995, (447) of 1997 and (461) of 1997 are concerned, there is delay in filing the same. Upon being satisfied with the explanation, the delay in filing said appeals is condoned and the applications for condonation of delay are allowed, however, without imposing any cost. These appeals are also disposed of without any order as to costs and will be governed by this judgement passed on merit. So far as First Appeal No. (1243) of 1993 is concerned, as per the office report there is deficiency of court fees. Therefore, subject to making the deficiency of court fees good, this appeal will be governed by this judgement and treated to be disposed of accordingly.

Let the records of the Court below, if any, be returned to the Court concerned as early as possible.