State of M.P. and others vs Ram Sundar

S.K. Dubey, J.

Stale of M.P. has filed the aforesaid appeals u/s 54 of the Land Acquisition Act, 1894 (for short ''the Act'') against the common award dated 13th September, 1989, passed in Reference Case No. 47/89 by IIIrd Additional Judge to the Court of District Judge, Rewa.

Facts giving rise to these appeals are these : A notification u/s 4 and 17 (1) of the Act was published in M. P. Rajpatra, dated 17.10.1982, at page 1253 for acquisition of the total area of lands 134.913 hectares situate in villages Babupur, Nipania, Dohi and Khobhar, Tahsil Huzur, District Rewa, for a public purpose, that is, for establishment of an ''industrial area''. Thereafter, declaration u/s 6 of the Act was published in M. P. Rajpatra on 31.12.1982. A public notice u/s 9 of the Act was caused to the person interested who submitted separate claims for compensation at different rates.

The possession of the land so acquired was taken by the Land Acquisition Officer (L. A. 0.) on 9.6.1983. On the claims of the land owners the L. A. O after holding inquiry u/s 11 of the Act awarded compensation. The land owners did not accept the amount awarded by the L. A. 0., made applications u/s 18 of the Act objecting to the award, and for referring the same to the determination of the Court. The appellants contested the reference. The land owners for the determination of the market value of the land as claimed, examined P. W. 1 Chhakodi and P. W. 2 Mahesh Prasad Gupta. P. W. 2 Mahesh Prasad Gupta proved the sale-deed Ex. P. 3 deled 15.6.1981 to which he was one of the vendors whereby area of land 0.018 out of his total land 2.01 acre situate in village Khairi Nipania in Tahsil Huzur was sold for a consideration of Rs.44,210/-atthcrateof Rs. 10/-persq. it. to M. P. Khadi Gramodyog Parisahd Branch Rewa, Head Office of which is situate at Bhopal. Another sale-deed Ex. P. 4 dated 5.3.1983 was proved in case of 24 of 1984 by P. W. 7 executed by one Premnath of Anantpur Housing Construction Co-operative Society, Rewa, area 0.202 situate in village Khairi for a consideration of Rs. 49,000/-. In rebuttal no evidence was led. The Reference Court after taking into consideration the matters for determining the compensation by applying the comparable sale method by Ex. P 3 and the fact that the land is situated within Municipal limits and had potentialities of building site, determined the market value at the rate of Rs, 40,000/- per acre, on that solarium u/s 23 (2) of the Act was awarded at the rate of 30% and interest on the compensation so determined at 9% per annum u/s 28 of the Act, the excess sum of the compensation awarded by the Reference Court till the date of deposit of such excess in Court.

Table below shows name of land-owner, appeal number, area, the amount claimed, compensation awarded by LAO and amount of compensation awarded by Reference Court:

Name of Land owner

Appeal

No.

Area

in

acre

Amount

claimed

before

LAO p. a.

Compensation LAO

Awarded by Reference Court

(1)

(2)

(3)

(4)

(5)

(6)

Ramsunder S/o Kunthey

FA 18/90

8/62

25000.00

98,645.00

3,44,800.00

Smt. GoriDashrath

FA 19/90 FA 20/90

4.52 3.55

60000.00 25000.00

31,971.00 16,158.00

1,80,800.00 1,42,000.00

Prasad S/o

Sudarshan

Ramnath S/o Lalla

FA 21/90

5.35

25,000.00

60,981.00

2,14,000.00

ChhakodilalS/o Mangal

FA 22/90

2.72

110,000.00

13,432.00

1,08.800

Yagnarayan S/o Dashrath

FA 23/90

2.05

60,000.00

14,508.00

82,000.00

Bhondulal S/o Ramadin

FA 24/90

2.25

25,000.00

12,812.00

90,000.00

Sukhdeo Pd

FA 25/90

2.20

100000.00

15,557.00

88,000.00

Kamlesh S/o

Mathura

FA 26/90

5.04

25,000.00

52,327.00

216,000.00

Nandkumar S/o Ramkumar

FA 27/90

4.84

25,000.00

57,577.00

193,600.00

Kanhayalal S/o Dadan

FA 38/90

1.53

60,000.00

10,820.00

61,200.00

Chhakodi S/o Mangal

FA 29/90

3.33

105,000.00

22,563.00

133,200.00

Surajdeen S/o Ramvishal

FA 30/90

6.16

30,000.00

68,034.00

246,400.00

Smt. Ramrati

FA 31/90

2,31

60000.00

10,764.00

92,400.00

Jagdish S/o Mangal

FA 32/90

0.08

2/- per sq. ft.

902.00

3,200.00

Smt. VinayKumariMishra

FA 33/90

0.80

35,000.00

3,726.00

32,000.00

Bhagwat S/o Ramsunder

FA 34/90

0.52

25,000.00

5,796.00

20,800.00

Smt. VinayKumari W/o Jagannath

FA 35/90

0.40

35,000.00

5,503.00

16,000.00

RamchandraS/o Neelkanth

FA 36/90

3.52

25,000.00

44,646.00

140,800.00

RamkhalawanS/o Ramawatar

FA 37/90

1.10

-

7,429.00

44,000.00

Mathura Pd S/o Ramsiya

FA 38/90

2.84

25,000.00

49,100.00

113,600.0

Ramchandra

S/o Neelkanth

FA 39/90

1.62

25,000.00

18,050.00

64,800.00

Ramkripal S/o Lallu

FA 40/90

6.00

40,000.00

67,013.00

240,000.00

Vanshgopal S/o Sukhdeo

FA 41/90

2.2.1

-

15,627.00

88.400.00

Dadan S/o Bhagwandeen

FA 42/90

11.36

60000.00

60,865.00

4,54,400.00

Ramnath S/o Lalla

FA 43/90

2.32

70000.00

16,484.00

92,800.00

RamchandraS/o Neelkanth

FA 44/90

2.92

25000.00

33,924,00

1,16,800.00

Shri A. K. Khaskalam, Deputy Advocate General submitted that the reference Court committed an error in determining the market value at the sq. ft. taking into consideration the comparable sale of a small area. The determination of market value of the land oh crucial date of publication of notification u/s 4 in a case where acquisition of large extent of land is to be made, square foot basis cannot be applied nor for determining the compensation a comparable sale relating to small extent of agricultural land can be made basis for enhancing compensation. Subsequent development of the area is irrelevant to the determination of compensation. It was further submitted that the most of the land owners have claimed compensation at the rate of Rs. 25000.00 or so, except a few who claimed higher as shown in the table. The reference Court could not have awarded compensation in excess to the amount claimed before L. A. O. Their claim itself demonstrates that the market value of the land in the area was not more than Rs. 25,000/- per acre. Hence the award passed by the reference Court in all the cases awarding compensation at the rate of Rs. 40000/-per acre is based on hypothetical considerations. It was also submitted that ineffective cross-examination or not leading any evidence in rebuttal will not entitle the land owners to claim compensation without proof of the same by legal evidence which is missing in the present case. To support the contentions counsel cited the decisions in Smt. Kamalabai Jageshwar Joshi and others Vs. State of Maharashtra and others, , U.P. Jal Nigam, Lucknow through its Chairman and another Vs. M/s. Kalra Properties (P) Ltd. Lucknow and others, , Administrator General of West Bengal Vs. Collector, Varanasi, , Chimanlal Hargovinddas Vs. Special Land Acquisition Officer, Poona and Another, , Chaturbhuj Pande and Others Vs. Collector, Raigarh, and Modi P. R. v. Collector Durg ( 1975 JLJ 595).

Shri L. S. Baghel, Senior Advocate with Shri G. S. Baghel learned counsel for the respondents/land owners supported the award and submitted that the poor agriculturists have been uprooted and deprived of their livelihood. The land is situated within the limits of the Municipal Corporation where all medical and educational facilities are easily available. There is rising trend in the market value of the land. In such circumstances though the land is recorded as agricultural but as the land so acquired has potentialities, i. e. as of an urban land, and, therefore, market value of the land and compensation determined by the Reference Court at the rate of Rs. 40,000/- is not on higher side. Counsel cited decisions in Joginder Singh Saini etc.etc. Vs. State of Haryana and another, , Special Land Acquisition Officer, Bangalore Vs. V.T. Velu and Others, . Municipal Committee, Bhatinda and Others Vs. Balwant Singh and Others, and M.P. Grih Nirman Mandal and Another Vs. Umashankar Kunjilal and Another,

It is not in dispute that the lands acquired are agricultural lands situated in different villages in Tahsil Huzur within the limits of Municipal Corporation, Rewa. The lands were acquired for the establishment of industrial area. TIKlaiul has not potential value as that of an urban land. However, for determining the die market value of land on the crucial date of publication of notification u/s 4 (1) some mental exercise considering the relevant factors, i. e. speculative advantage, potentialities, size, shape and frontage, 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, has to be done. It has also to be assumed that the vendor is willing to sell the land at a reasonable price. In doing so by the instances method, the Court has to corelate the market value reflected in the most comparable instances which provides the index of market value. Only genuine instances have to be taken into account. Sometimes instances are rigged up in anticipation of acquisition of land. Even post notification instances can be taken into account, if they are genuine, proximate and the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects. The most comparable instances out of the genuine instances have to be identified on (lie consideration, (i) proximity from time angle, and (ii) proximity from situation angle. Having identified me 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 deducted by making suitable adjustments for the plus and minus factors vis-a-vis land under acquisition by placing the two in juxtaposition. A balance-sheet of plus and minus factors may be drawn for this purpose and the relevant factors evaluated in terms of price variation as a prudent purchaser would do. The market value of the land under acquisition has thereafter to be deducted by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors. (See the decision of the Supreme Court in Chimanlal''s case supra).

In view of the recent decision of the Supreme Court in case of Municipal Committee, Bhatinda v. Balwant Singh (supra), we are of the view that though the lands are agricultural lands and are situated within the limits of Municipal Corporation and the built up area, therefore, the lands certainly possessed of potential value for residential or commercial purposes. The reference Court on the evidence adduced also found that the land has obtained potentiality for being put to residential, commercial or industrial uses and is within the urban area of (he town. In such situation, though number of sales are not available, but EX. P. 3 is a bona fide sale of a big area purchased by a corporate body, which reflects the market value al the rate of Rs. 40,000/- per acre. However, there is no evidence that whether the land so sold vide Ex. P. 3 is in proximate with situation angle. Likewise, no evidence has been led by the land owners that the lands so acquired have the same potentiality as that of the land purchased by Ex. P.3. But, certainly Ex! P. 3 reflects the near about market price as on the day in the vicinity. The price for determining the compensation should be fair and reasonable. Therefore, taking into consideration Ex. P. 3 and the oral evidence of P. W. 1 and P. W. 2, giving an allowance of various factor, such as, loss of lands required out of the acquired land to be used for roads, drains, parks, the expenditure involved in forming the layout, the reasonable market value of the land should be determined at Rs. 30,000.00 per acre. On that each of the land owners would be entitled in respect of his land 30 per centum solarium and interest at the rate of 9% per annum u/s 28 of the Act on the excess amount as awarded by us from the dale on which the possession of the land was taken over to the payment of such excess. Besides, twelve per centum u/s 23 (1-A) of the Act which is statutorily provided and was not awarded either by the L. A. O. by the reference Court. Though an objection was raised by the learned Dy. Advocate General that in the absence of cross-objection or cross appeal this amount cannot be awarded, but, in view of the fact that it is the mandate of law u/s 23 (1 -A) to award in addition to market value of the land an amount calculated at the rate of twelve per centum per annum on the market value for the period commencing on and from the date of publication of the notification u/s 4 (1) to the date of the award passed by L. A. O. or the date of taking over possession of the land, whichever is earlier, therefore, there is no discretion left with tin''s Court but to award the same amount by supplying the omission in the award passed by the reference Court.

The Supreme Court in the case of Narain Das Jain (Since Deceased) by Lrs. Vs. Agra Nagar Mahapalika, Agra, wherein u/s 23 (2) in addition to (he market value of the land as provided under sub-section (1-A) of section 23, the solatium was not awarded, ruled that solatium and interest must be paid in all cases since the award of solatium is in consideration of the compulsory nature of acquisition and the Court has no discretion of not awarding the same. A Division Bench of Calcutta High Court, in The State of West Bengal Vs. Dhanesh Bijoy Sahana and Others, , a case where additional amount u/s 23 (2) was not awarded by the L. A. O. and L. A. Judge, while fixing the compensation for certain land and also omitted to award (he sum of fifteen per centum on the market value of llic land. Il was contended in appeal by the State that as no cross-objection to the appeal was tiled the plea in respect of the additional compensation could not be raised. The Court held that the award of the additional compensation is a must for the Court in view of the compulsory nature of the acquisition. Hence it was not necessary that any cross-objection be filed to agitate the claim.

Besides, this Court in exercise of power under Order XLI rule 33 of the CPC can award (he statutory amount u/s. 23 (1-A) by supplying the omission in the award which was passed by the reference Court as the award of the reference Court ought to have been in accordance with the statutory provision contained in section 23 of the Act irrespective of not filing an appeal or cross-objection by respondents. The words "as the case may require"'' used in rule 33 of the Order XLI have been put in wide terms to enable the appellate Court to pass any order or decree to meet the ends of justice in between the parties, if the two conditions as laid down by the Supreme Court, that the parties before the lower Court should be present before the appellate Court and that the question raised must properly arise out of the judgment of the lower Court, are fulfilled. See. Mahant Dhangir and Another Vs. Madan Mohan and Others,

However, the respondent-land owners who claimed a definite amount in F. A. Nos. 18,20,21,24,26,27,34,36,38,39 and 44 all of 1990 will be entitled to get compensation only at the rate of Rs, 25,000/- per acre as claimed by them before the L. A. O. in their claims in response to notice u/s 9 of the Act, as it was their admission which they have not explained before the reference Court. Though it was contended by the learned counsel for the respondents/ land owners that section 25 of the Act has been amended, which lays down that the amount of compensation awarded by the Court shall not less than the amount awarded by the Collector u/s 11, therefore, inspite of the fact that the respondents claimed compensation at the rate of Rs. 25,000/- per acre will not an estoppel against the respondents/land owners, in our opinion, section 25, as amended, will not also be helpful as this Court is not awarding the compensation on the market value less than that awarded by the L. A. O.

Accordingly we direct that the compensation to each of the land owners shall be calculated at the rate as awarded by us, on that an additional amount calculated at the rate of twelve per centum per annum for the period commencing on and from the date of publication of the notification u/s 4 (1) to the date of the award passed by L. A. 0. or the date of taking over possession of the land, whichever is earlier, u/s 23 (1-A), solatium at the rate of 30% u/s 23 (2) and interest at the rate of 9% per annum u/s 28 of the Act. The amount after calculation shall be deposited within a period of two months for the payment of the land owners / respondents.

In the result, the appeals are partly allowed. The award passed by the reference Court shall stand substituted accordingly. The records of the case be sent back with the copy of this order to the reference Court. In the circumstances, the parties shall bear their own costs.