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Judgment
R. K. Mahajan, J.—This common judgment disposes of this appeal as well as First Appeal No. 573 of 1993, State of U.P. and another v. Rajendra Singh and others, First Appeal No. 574 of 1993, State of U.P. and another v. Smt. Gayatri Devi, and First Appeal No. 575 of 1993, State of U.P. and another v. Mahesh Chandra Sharma, which were disposed of by a common judgment rendered in Land Acquisition Reference No. 68 of 1993, 69 of 1993,70 of 1993 and 71 of 1993, by Shri Rameshwar Singh, Xth Additional District Judge, Bulandshahr treating Land Reference No. 68 of 1993 as the leading case, which has given rise to the present First Appeals, as in all these appeals common questions of law and facts are involved.
At the very outset it may be mentioned that this is a case where the compensation has been increased more than 61/2 times by the learned Additional District Judge inasmuch as it has been enhanced from Rs. 44,500/ per bigha to Rs. 2,70,00/. It is an amazingly sky rocketting.
It appears that at the request of Appellant No. 2 Krishi Utpadan Mandi Samiti, Siana, the Collector Bulandshahr acquired the following lands :
Village Plot Nos. Area
Bigha Biswa Biswansi
Siana 430 1 10 0
� 1012 10 3 0
� 1015 00 5 0
� 1016 00 3 0
� 101 11 11 10
� 1035 1 08 00
� 1036 1 10 00
� 1038 9 19 10
36 07 00
The Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) was issued on 2741989. The notification under Section 6 of the Act was issued on 30111989. The possession of the lands was taken on 2011992. The award was given by the Special Land Acquisition Officer on 2011992. The purpose for acquisition of the land was for constructing market yard of the Samiti. Special Land Acquisition Officer, after examining the spot and considering 135 sale deeds executed within three years, determined the rate of compensation at the rate of Rs. 44,500/ per bigha for the land measuring 33 bighas and 1 biswa and awarded Rs. 14,70,725/. It appears that for the remaining 3 bighas and 3 biswas the compensation was awarded at the rate of Rs. 23,812.59 per bigha and determined the compensation of Rs. 75,009.38 p. He also determined and awarded Rs. 2,400/towards compensation for trees. The Special Land Acquisition Officer (S.L.A.O.) followed the belt system as it appears while granting compensation the land was divided into two categories. The total compensation awarded was Rs. 15,48,134.38. The S.L.A.O. also granted other benefits available i.e. solatium etc. under the Act of 1894. It appears that the affected persons i.e. tenure holders whose land has been acquired were not satisfied and they filed reference before the District Judge under Section 18 of the Act claiming compensation at therate of Rs. 1,230/ and Rs. 600/per square yard respectively of different belts on the ground that they were granted not fair compensation. Their grievance was that rate of compensation should not be less than Rs. l,260/per square yard. They also averred that the acquired land was surrounded by developed colonies and adjoins G.T. Road. The names of developed colonies are Palak Vihar, Sushila Vihar and Ganpati Vihar.
Learned Xth Additional District Judge, Bulandshahr relied upon exemplar sale deed dated 30111989 (paper No. 14/3C) under which the plot in the aforesaid sale deed was sold for Rs. 62,000/ and rate was fixed @ Rs. 400/ per square yard. The reasonings given in paragraph No. 13 of the judgment are that the has already given in connected land reference Nos. 480 of 1991,481 of 1992,481 of 1991, and 563 of 1991 the rate of Rs. 400/per square yard. He was also of the view that the appellant placed on record the circle rate which fixed the price of Rs. 400/per square yard. It appears that he was also swayed by the instruction that the Government vide Government Order dated 461988 has disallowed the deduction of 25% if the land is less than 8 acres in area and was of the view that since it is surrounded by the developed colonies and adjoining to G.T. Road so the fair compensation would be Rs. 400/ per square yard. He also gave compensation regarding the foundation and boundary, which affected parties has raised on the land, as mentioned in the judgment.
Special Land Acquisition Officer based his finding on various sale deeds and relied upon sale deed dated 2841987 executed by Netra Pal in respect of plot Nos. 1035 and 1036 by means of which 12 1/2 biswas land of plot No. 1035 was sold for Rs. 20,000/ and determined the compensation at the rate of Rs. 44,500/ per bigha. There is also reference of sale of 1 bigha and 11 biswas for Rs. 55.000/ at the rate of Rs. 35,483/ per bigha and 2 bighas and 2 biswas and 5 biswansi was sold for Rs. 31,000 on 1041989,3 bigha 4 biswas and 10 biswansi was sold on 2151989 out of plot No. 1439 for Rs. 30,339 per bigha. Only few transactions are mentioned and there is no need of multiplication as main foundation was sale of 12 1/2 biswas of plot Nos. 1035 and 1036 dated 2841987.
These appeals were earlier filed by the State Government alone. The Krishi Utpadan Mandi Samiti Siana filed an impleadment application which was allowed vide order dated 1661996. By order dated 23996 it was transposed as appellant No. 2. As the correctness of the aforesaid orders was not challenged by the respondents either before the Supreme Court or before this Court, they have become final.
Sri V D. Mandhyan, learned Counsel for the appellants contends as follows:
(i) The learned District Judge has not issued any notice regarding reference. The matter has been decided by the learned Additional District Judge within one month and six days from the date of reference, not on merits but on extraneous considerations. Fair and reasonable opportunity has not been given which is against the spirit of Section 52 of the Act. He relied upon several judgments of the apex Court which will be referred to later on.
(ii) The compensation cannot be determined on per square yard basis when larger area was subjectmatter of acquisition.
(iii) He also presses the application filed under Order XLI, Rule 27, CPC for taking additional evidence and submits that these cases be remanded in fairness to all.
Learned Standing Counsel for the appellant No. 1 contends as follows:
(i) The impleadment of the acquiring body was necessary under reference.
(ii) The documentary evidence adduced by the claimants were in regard to different place and different part of the land and could not be basis for enhanced compensation.
(iii) The reference was barred by time.
Shri Ajit Kumar, learned Counsel appearing for the Respondents, on the other hand contends as follows:
(i) The Mandi Samit was aware of the proceedings and had participated in the proceedings and as such it is not open to the Samiti to take the ground that it has not no opportunity to participate. The Collector while making reference has also directed the Secretary of the Samiti to furnish all the papers. Mandi Samiti also submitted its written statement (vide paper No. 11A). The Samiti also inspected the file vide paper No. 14D on 1331993 stating that Mandi Samiti is a party and as such wants to inspect the file of District Judge in Land Acquisition Reference No. 68 of 1991. Application (34D) was filed through an Advocate. The Mandi Samiti has not submitted any memo of appeal rather has merely transposed as appellant No. 2 and without submitting memo of appeal the Mandi Samiti has no locus standi to argue the appeals who did not amend the memo of appeal.
(ii) The Mandi Samiti has not been prejudiced on account of the technical objection that it has not been arrayed as a party by the District Judge in the Reference under Section 18 of the Act.
(iii) The Mandi Samiti applied for restoration of the case which was dismissed on 1141994 and has become final.
(iv) Since the State Government has filed appeal, the Mandi Samiti has no right to file an appeal.
We are of the considered view that the appeals are liable to be accepted.
It was not safe to make a comparison between the small piece of land i.e. biswas with a big chunk of land and to determine the rate of compensation on the basis of square yard. The need of the purchaser with respect to small piece of land may have arisen out of necessity and compelling circumstances. For comparison i.e. exemplar it must be remembered that the quality, quantity and potential must stand in comparison of the area which is under acquisition. The principle has been laid down by the apex Court in so many judgments that whether a willing purchaser in such a situation or circumstances will buy a big chunk of land 1 bighas, 2 bighas or so many bighas as in this case at the rate of Rs. 400/ per square yard. One may not have capacity to pay. The standard which has been emphasised regarding determination of the price is of ordinary prudent purchaser and not an unreasonable purchaser.
The learned Additional District Judge has fallen into grave error in fixing the market value by comparison of a smaller plot with a bigger plot and determining the same on square yard basis. We are also of the view that reasonable deduction has not been made when determining the value from 30% to 60%. The bigger plot has to be developed and so large land is wasted in roads, civic amenities. Such a practice has been deprecated by the Courts. (See. (i) S.L.O. v. Sri Sidappa Omanna Tumari and others, JT 1994 (7) SC 257 (ii) Chiman Lal Hargovinddas v. S.L.A.O. Poona, AIR 1988 SC 1652 (iii) Division Bench Judgment of this Court delivered on 2751997 in Civil Misc. Writ PetitionNo. 13502of 1992, KrishiUtpadan Mandi Samiti Mauranipur, Jhansi v. State of U.P. and others, of which one of us (R. K. Mahajan, J.) was a Member).
There is yet another decision of the Apex Court to our notice, JT 1997(5) 490 Union of India v. Chain Singh, laying down that the real test is of willing purchaser and willing buyer. What price would it fetch in open market? Who would pay for 100 Kanals for Rs. 70,000 per Kanais in total Rs. 30,000 was given while awarding compensation.
In A. P. State Road Transport Corporation, Hyderabad v. P. Venkaiah and others, JT 1987(5) SC 362, the Hon''ble Supreme Court set aside the impugned order in land acquisition case and remitted the case to the reference court for disposal after opportunity is given to the respondents to adduce evidence.
There was also an illegal procedure adopted by the lower court. The vendor and vendee have not been produced. The Apex Court in U.P. State Road Transport Corporation, Aligarh v. State of U.P. and others, JT 1997(4) SC 555, has held to the effect that the sale deeds filed in support of claim for higher compensation were not substantiated by the examination of either vendor or vendee, in that event the evidence was not legally admissible as the approach of High Court and reference Court was not correct and the matter was remitted to reference court to allow parties to produce evidence afresh.
In G. Narayan Rao v. Land Acquisition Officer, JT 1996(6) SC 721, the Hon''ble Supreme Court has held as under:
"It is settled law from the decisions of this Court starting from the Collector, Raigarh v. Dr. Hari Singh Thakur and another, AIR 1979 SC 472 and that of the A.P. High Court in the Tahsildar Land Acquisition, Viahatdmpatnain v. Shri P. Narsmgh Rao and others, (1985)1 APLJ 99, that either the vendor or the vendee should be examined in proof of the documents to establish passing of the real consideration under the documents, the nature of the respective lands and whether the documents are genuine documents etc. It is for the court to consider all the relevant facts to accept the correctness of the sale deeds and then consider whether they should form basis of determine compensation. In the absence of proof of above facts that would be no evidence for the court to place reliance on untested documents. The reference court therefore, was clearly in error in acting upon the untested sale deeds to determine the compensation @ Rs. 46/ per square yard after the deduction."
The rationable behind examination of vendor and vendee is that they can be subjected to crossexamination to elicit truth whether the consideration money was correct or it has been made to inflate the price, or whether it was actually paid for determination of the price. True it is that as per Section 51A certified copies of registered documents may be accepted as evidence of the transaction recorded in such documents but it does not mean that the contents are admissible which are required to be proved like any other document. Regarding production of original copies it was realised the legislature that people were facing difficulties in getting the original copies of the sale deeds and the vendor and vendee may not be willing to produce them for one reason or the other besides, it was difficult to get them back from the Court. The finding of the learned Distt. Judge is thus liable to be set aside on the ground of nonexamination of the vendor and the vendee. On examination of the sale deed dated 30111988 on the record (as paper No. 14 C) and the evidence it appears that Ram Kumar who sold the land for Rs. 62,000/ to Shri Kishan Gopal and Smt. Rekha Rani but they have not been examined. On this ground the judgment and award is set aside.
The Hon''ble Supreme Court in U.P. Avas Evam Vikas Parishad v. Cyan Devi, AIR 1995 SC724, observed that local authority is a proper party in the proceedings before the Reference Court and is entitled to be impleaded as a party in those proceedings where it can defend the determination of amount of compensation by the Collector and oppose enhancement of the said amount and also adduce evidence in that regard. It was also observed that if Government does not file appeal the local authority can file an appeal with the leave of the court.
The authority for whom the land is being acquired has a right to adduce evidence for the purpose of determining amount of compensation. Section 50(2) of The Land Acquisition Act, 1894 is relevant which reads as under:
"50..............
(1)���.
(2) In any proceeding held before a Collector or Court in such cases the local authority or Company concerned may appear and adduce evidence for the purpose of determining the amount of compensation.
Provided that no such local authority or Company shall be entitled to demand a reference under Section 18."
This right has been given by the Legislature to the local authority to protect its own interest and it can assist in leading of the evidence to avoid in differences and lethargy and apathy on the part of the State Government or its functionary. In differenceness is now a days writ large in bureaucratic functioning and the court can take judicial notice of the fact and it is also apparent from the material on record and submissions made by the learned Counsel for the Samiti.
The land was acquired at the instance of Samiti and the money was/is to be paid by the Samiti. The land was acquired for public interest in the exercise of sovereign powers by the State Government. While awarding the compensation the District Judge or S.L.A.O. was required to see that it should not be a wind fall or lottery to the persons whose lands were acquired. Standard has been fixed by the Legislature under Section 23 of the Act for determination of reasonable market value. This principle was required to be kept in mind by the learned District Judge while deciding the cases.
We are of the view that the case was decided in extreme haste. It obviously means that Samiti has not been given a fair chance of hearing before the District Judge.
Since the Samiti has been transposed as Appellant No. 2, it can challenge the impugned award and we hold that grant of leave by this Court was implicit when it permitted impleadment and transposition.
We have gone through the order dated 11194 passed by the Court below by which the prayer for rehearing made on behalf of the appellant No. 2 on the ground that even though it was a necessary party but no intimation was given to it in regard to hearing; that the impugned order is not correct and that its view point was not correctly put up by the State and hence the judgment, rendered ex pane, is fit to be set aside, was rejected. The respondent herein took up a stand in reply that the Collector, Bulandshahr had already done Pairvi on behalf of the State of U.P. in the main reference and thus the impugned judgment dated 6593 cannot be rendered ex pane that against the main judgment the Mandi Samiti as well as State of U.P. have filed an appeal before Hon''ble High Court of Allahabad, which is pending, and in this view of the matter the Court below has no jurisdiction to hear the prayer which is not maintainable and is, thus, liable to be dismissed. The learned Additional District Judge was pleased to reject the prayer stating as follows (i) In the main case the applicant Samiti was not a party rather only State of U.P. was party, (ii) The interest of the applicant was looked after by the State of U.P. thus there is no question of passing an ex pane order against the applicant and for this reason .there is no justification to set aside the order dated 751993. Besides this the decision is pending adjudication in appeal at the instance of the applicant and the State of U.P. From this order it is clear that Samiti was not impleaded as a party and its prayer for rehearing the case was rejected on account of pendency of this appeal as well. Thus the objections raised by Sri Ajit Kumar are of no avail. Thus this order does not stand as a bar against the entertainment of the grievances of the appellant No. 2 before this Court.
After taking broader view in the interest of justice we are of the view that the way in which the decision has been rendered and the manner in which evidence has been adduced could have been avoided had the learned District Judge sent a notice to the Samiti.
The respondents were just like plaintiffs who were required to prove their case before the District Judge, i.e. Reference Court in accordance with law.
We are of the considered view that the case has been properly dealt with either for the benefit of the respondents or from the Government point of view or Krishi Utpadan Mandi Samiti. The case was dealt with very hurriedly. It is said that justice delayed is justice denied and that justice hurried is justice buried.
We are of the view that the prayer for remand and adducing of evidence in the facts and circumstances of the case are justified
In the result we allow these appeals, set aside the impugned award dated 651993 and remand the cases ford novo trial after impleading the appellant No. 2 with a direction that the parties to appear on before the court below who will be given chance to lead evidence in accordance with law keeping in view our observations mentioned above.
Interim orders were passed in these appeals that half of the money be paid to me respondents without security and half on furnishing security. We do not know whether money has been paid or not. In case it was paid proceedings for refund has to be started immediately by the District Judge.
We are also of the view that it is a fit case in which the entire court fee should be refunded to the appellant No. 1 under Section 13 of the Court Fees Act, 1870. Necessary certificate be issued to the appellant No. 1 authorising it to receive back from the Collector the full amount of the court fees paid on the memorandum of appeals.
Binod Kumar Roy, J.I wholly agree. Appeals allowed.