JUDGMENT [ENTITY], J.
1. This shall dispose of [CASE NUMBER].
2. Vide notification dated 15.12.1982 issued [SECTION] of the [ACT] (for short the Act) land was acquired for public purpose i.e. for development and utilisation as residential, commercial and industrial area in Sectors 11, 12 and 25 (Phase-II) in Urban Estate, Panipat.
3. The Land Acquisition Collector awarded compensation at the rate of Rs. 59,200/- per acre. The land-owners were not satisfied with the award and therefore, they made reference [SECTION] and also claimed damages [SECTION] and [SECTION] of the Act. Shri [ENTITY], Additional District Judge, Karnal vide award dated 1.8.1988 awarded compensation at the rate of Rs. 27/- per sq. yard. Against this award/judgment, [CASE NUMBER] have been filed. Shri [ENTITY], Additional District Judge, Karnal awarded compensation at the rate of Rs. 27/- per sq. yard. Against this award judgment, [CASE NUMBER] have been preferred. Shri [ENTITY], Additional District Judge, Karnal awarded compensation at the rate of Rs 44/- per sq. yard. Out of this decision, [CASE NUMBER] arise. Subsequently, on 3.1.1991 Shri [ENTITY] again awarded compensation at the rate of Rs. 44/- per sq. yard. Against this judgment, [CASE NUMBER] have been preferred. [CASE NUMBER] have been preferred against award dated [SECTION].1.1991 wherein the market value of the land acquired has been fixed at the rate of Rs. 44/- per sq. yard, [CASE NUMBER] arise out of decision dated 2.11.1992 given by Shri [ENTITY], Additional District Judge, Panipat.
4. In all the aforesaid Regular First Appeals, all the claimants are aggrieved of the quantum of compensation awarded by the Additional District Judge and in [CASE NUMBER], the appellants are also aggrieved of the damages awarded by Additional District Judge [SECTION] and [SECTION] of the Act. In [CASE NUMBER], in addition to the above, the petitioners are aggrieved of the order whereby they have been denied compensation for standing crops.
5. Before dealing with the arguments advanced by learned counsel for the appellants, it deserves to be noticed that land in question along with some other land had been notified for acquisition in the first instance on 30.8.1977. Land in question was denotified from acquisition only for one day i.e. 14.12.1982 and on the very next day i.e. 15.12.1982 the land was again notified for acquisition for the same purpose i.e. for being used as residential, commercial and industrial area in Sectors 11, 12 and 25 (Phase-II) in Urban Estate, Panipat. The other land is now known as Sectors 11, 12 and 25, Phase-I, A Division Bench of this Court in [ENTITY] v. Haryana State, A.I.R. 1989 P & H 27, determined the market value for other land, referred to as 3rd acquisition in the judgment, at the rate of Rs. 42/-per sq. yard. Since the land was found to be uneven and sloppy, suitable deduction was made and compensation was awarded at flat rate of Rs. 39/- per sq. yard. The fact that the acquired land had high potentialities for being used as residential, commercial and industrial area has not been disputed during the arguments. Even the Collector in his award has noticed that on the eastern side is 440 K.V. line and agricultural land. On Western side is Ganda Nullah and Sectors 11, 12 and 25 (Phase-I). On the Northern side is Sanauli road and on the Southern side is agricultural land. In the site plan, Exhibit P.1 the acquired land has been shown in dotted black lines and the built up area which was in existence prior to the acquisition of land in dispute has been shown in red colour and other area in Sectors 11, 12 and 25 (Ph-I) has been shown in yellow colour. Housing Board Colony which is also developed is adjacent to the acquired land. G.T. road is approximately 1/2 kms from the acquired land. The Additional District Judge has also noticed that the land in dispute has the potential for being used as residential commercial and industrial purposes. It has also come on record that amenities like water, electricity sewerage and telephone are available near the acquired land. It is, keeping in view the potential and availability of the said amenities that the. market value of the land at the time of issuing notification [SECTION] of the Act is to be determined.
6. The instance of sale which have been relied upon by the appellants for determining the market value of the acquired land, find mention in the Table given in para 18 of the judgment passed by the Additional District Judge. The Table may be noticed;
Exhibit Date Village Area Price Approximate Number of of for price per sale land which Sq. Yard sold sold P-2 1.3.1973 [ENTITY] 272 Sq. Rs. 16320/- Rs. 60/-
[ENTITY]. (5-1/2 [ENTITY]) P-3 31.12.73 -do- 250 Sq.Yds. Rs. 16000/- Rs.64/- (5 [ENTITY]) P-4 27.4.77 [ENTITY] 148.5 sq. Yds. Rs. 6000/- Rs.40/- Algan P-5 22.10.81 Ugra 7 Marias Rs. 20000/- Rs. 100/- Kheri (200 sq. Yds.) P-6 9.2.82 -do- 3 Maria Rs. 11000/- Rs.110/- 100 Sq.Yds.) P-7 5.3.82 -do- 10 Marla Rs. 45000/- Rs.150/- 300 Sq. Yds.
The sale deeds, copies of which are Exhibit P-2, P-3 and P-4 have been ruled out from consideration by the Additional District Judge for determining the market value of acquired land since these relate to the years 1973 to 1977 whereas market value of the acquired land has to be assessed as on 15.12.1982. sale-deeds, Exhs P-5 to P-7 were not taken into consideration primarily on two grounds, namely
i) the area of the sale transactions is extremely small, i.e. between 3marlas and 10 marlas whereas the acquired land measures 232 acres and
ii) the possibility cannot be ruled out that these transactions might havebeen brought into existence in order to secure exaggerated compensation for the acquired land by asserting that these sale instances relate to the acquired land.
The Additional District Judge thus, on the basis of judgment in [ENTITY]'s case (supra) assessed the market value at the rate of Rs. 39/- per sq. yard as on 30.8.1977 and by giving an increase of Rs. 1/- per Sq. yard per year for a period of five years commencing from 30,8.1977 assessed the market value of the acquired land at the rate of Rs.44/- per sq. yard as on 15.12.1982.
7. Learned counsel for the appellants have contended that the manner in which Additional District Judge has assessed the market value of the land, is erroneous inasmuch as in [ENTITY]'s case (Supra) the market value of the land was assessed at the rate of Rs. 42/- per sq. yard but since the land was found to be uneven, a deduction was made and the compensation at the rate of Rs. 39/- per sq. yard was awarded whereas the land in dispute is not uneven and therefore, as on 30.8.1977 the market value of the land in dispute as determined by the High Court in [ENTITY]'s case (Supra) has to be taken at the rate of Rs. 42/- per sq. yard. Learned counsel for the State has fairly admitted that in [ENTITY]'s case the land in dispute was sloppy and uneven whereas this is not the position in the present case.
8. The next question which arises for consideration is as to whether the Additional District Judge was justified in not taking into consideration sale deeds, Exhs. P-5, P-6 and P-7 being sale instances of small plots. It has been held by the Supreme Court in [PRECEDENT] as under:-
"It is trite proposition that prices fetched for small plots cannot form safe bases for valuation of large tracts of land as the two are not comparable properties. The principle that evidence of market value of sales of small, developed plots is not a safe guide in valuing large extents of land with potentialities for urban use has to be understood in its proper perspective. The principle requires that price fetched for small developed plots cannot directly be adopted in valuing large extents. However, if it is shown that the large extent to be valued does admit of and is ripe for use for building purposes, that building lots that could be laid out on the land would be good selling propositions and that valuation on the basis of the method of a hypothetical lay oat could with justification be adopted, then in valuing such small, laid but sites the valuation indicated by sale of comparable small sites in the area at or about the time of the notification would be relevant, In such a case, necessary deductions for the extent of land required for the formation of roads and other civic amenities expenses of development of the sites by laying out roads, drains, Sewerage, water and electricity lines, and the interest on the outlays for the period of determent of the realisation of the price; the profits on the venture etc. are to be made. Deductions for land required for roads and other development expenses can, together come up to as much as 53%. Accordingly, the prices fetched for small plots cannot directly be applied in the case of large areas, for the reason that the former reflects the retail price of land and the latter the 'wholesale' price."
Thus, the first principle settled is that where large tracts of land are required to be valued, valuation in transactions with regard to small plots is not to be taken as the real basis for determining the compensation of large tracts of land. The other principle is that where the market value of large block of land is determined on the basis of sale transactions for smaller property, appropriate deduction has to be made for making allowance for the loss of the acquired land required to be used for roads, drains, sewers, open spaces and the expenditure involved in providing other amenities like water, electricity etc. The extent of area required to be set apart has to be assessed by the Court having regard to the shape, size and situation of the concerned block of land. It has consistently been held by the Apex Court that there cannot be any hard and fast rule as to how much deduction should be made to account for these factors. It is essentially a question of fact depending upon the facts and circumstances of each case.
9. The reasoning advanced by the learned Additional District Judge that the possibility cannot be ruled out that these transactions might have been brought into existence in order to seek exaggerated compensation for the acquired land, cannot be accepted for the reason that the land in dispute was under acquisition w.e.f. 30.8.1977 and was denotified only for one day i.e. 14.12.1982 and again notified on 15.12.1982, sale deeds, Exhs P-5 P-6 and P-7 are dated 22.10.1981, 9.2.1982 and 5.3.1982 respectively. In October, 1981, February 1982, and March, 1982 the land was under acquisition and on the dates when the sale-deeds are alleged to have been executed, declaration [SECTION] of the Act was operational and therefore, there is no possibility of land-owners knowing that the land would again be denotified and brought under acquisition. It may also be noticed that in [ENTITY]'s case (supra) the Division Bench for determining the market value of the land acquired as on 30.8.1977 determined the market value at the rate of Rs. 42/-per sq. yard on the basis of sale-deeds Exhs. P-2 and P-3 which are dated 1.3.1973 and 31.12.1973 and the land under these sale-deeds were sold at the rate of Rs.60/-and Rs. 64/- per sq. yard. Sale-deeds, Exhs P-5 P-6 and P-7 came into existence eight-nine years after coming into existence of sale deeds, Exhs. P-2 and P-3. The consideration shown in the sale deeds can be said to be inflated as it is common knowledge that whenever land is under acquisition, it fetches price much lower than the price prevalent in the market. I am thus, of the view that sale-deeds, Exhs P-5 P-6 and P-7 cannot be ruled out absolutely for determining the market value of the acquired land.
10. In award dated [SECTION].1.1991. Shri [ENTITY], Additional District Judge has noticed that in Sectors 11 and 12 in Urban Estate, Panipat (Phase-I), Haryana Urban Development Authority (HUDA in short) in September, 1980 sold plots at the rate of Rs. 75/- per sq.yard. This land was subject matter of notification dated 30.8.1977 under [SECTION] of the Act. He has also noticed that HUDA again sold Plots in Sector 11 and 12 (Phase-II) in March, 1985 at the rate of Rs. 165.50 to Rs. 202.33p per sq. yard from the land which is subject matter of these appeals. Likewise, Shri [ENTITY], Additional District Judge, Karnal in para 15 of the judgment took notice of the statement of [ENTITY], Clerk of Improvement Trust, Panipat, who on the basis of record submitted that the residential-cum-com-mercial plots were sold at the rate of Rs. 140/- per sq. yard by the Improvement Trust in the year 1977. Further, auction was held in the year 1982 and the highest bid for sale of shop-cum-flat plot measuring 175 sq. meters was accepted for Rs. 94,500/- which comes to Rs.450/- per sq. yard. In cross-examination, he admitted that the price of the allotment of plots was fixed after taking into account the compensation paid, development charges, water charges, road charges, sewerage charges, electricity charges and other facilities. He also admitted that the land which was sold by the Improvement Trust is situated within the municipal limits and is quite adjacent to the acquired land. The fact that the Improvement Trust had auctioned the land in the year 1977 in the colony adjacent to the land in dispute at the rate of Rs. 140/- per sq. yard and in 1982 the plots were sold at the rate of Rs. 450/- per sq. yard, shows that there was a rising trend in prices to the extent of 300 per cent from the date when the land was acquired referred to as 3rd acquisition in [PRECEDENT]'s case (supra). Similarly, the Exhibit RB, award dated 18.5.1990 given by Shri [ENTITY], Additional District Judge, reading of para 17, thereof shows that the residential plots in Sectors 11 and 12 (Phase-I) were sold at the rate of Rs.77.75 per sq. yard and in Sectors 11 and 12 (Phase-II) the plots were sold at the rate of Rs.198/- per sq. yard and commercial plots were auctioned at the rates ranging from Rs. 1490/- per sq. meter. Though these transactions are not being taken into consideration for determining the market value for the reason that the land was sold by the Improvement Trust or HUDA after the land was developed and cannot form the basis of determining the market value of the land which is still to be developed, yet one thing is clear from the sale of plots by HUDA and Improvement Trust that the sale-transactions, Exhs. P-5, P-6 and P-7 are not sham or fictitious. A look at the site plan, Exh. P-1 makes it clear that before the land in question was acquired for extension of existing Sectors 11, 12 and 25 (Phase-I). Housing Board Colony had come into existence and HUDA had already developed the land which was acquired on 30.8.1977 for carving out Sectors 11, 12 and 25 (Phase-I). Had the land in question not been acquired, the whole area would have developed as Industrial and commercial area. In the brochure, Exhibit P-22, published by HUDA offering plots in Sector 11-12, it has been stated that Panipat is one of the fast growing industrial towns of Haryana. It is situated on [ACT]) at a distance of 85 kms. from Delhi. The town is well linked with network of roads with all important towns of the State and other trans-Yamuna towns of Uttar Pradesh like Muzaffaar Nagar. Amritsar-Delhi main broadgauge railway line also passes through it which makes it. easily accessible from other parts of the country. Besides, Panipat is one of the eight identified towns in National Capital Region and thus stands proposed to be developed on priority. It is famous for its wool market and textile manufacturing industries. The setting up of Co-operative Sugar Mill, National Fertilizer Plant and Thermal Power Project have further given impetus to the economic development of the town. More than 1200 industrial units are personally operating in the town employing 42% of the total working force. In addition, an oil Refinery is also in the process of being set up on the out-skirts of this town which shall give rise to a large number of ancillary industries, thus increasing its importance manifold. Considering that [SECTION] for which land in question has been acquired is ideally located and abets Sanauli Road and forms parts of sector [SECTION] which was floated and allotted auctioned where all the infrastructural services are being made available, I have no hesitation in holding that the acquired land had the potential for such development and therefore, sale-deeds, Exhibits P-5, P-6 and P-7 though cannot be taken to be comparable sales yet these do provide working basis to the extent that the plots of land involved in Exhibits P-5, P-6 and P-7 would be sold at the rate between Rs.100/-, Rs.110/- to Rs.150/- per square yard and to make it workable average, say at the rate of Rs.120/- per square yard. The acquisition in question is dated 15.12.1982 and by making suitable allowance which has to be made to account for the land acquired to be set apart for roads, open spaces, sewerage, water and electricity lines etc. and by taking into consideration that the facilities like water, electricity and telephone are available in the adjoining land which had already developed when the land in question was developed, I am of the view that it would be appropriate if deduction is made to the extent of 40 per cent. Accordingly, the market value of the land is fixed at Rs.72/- per sq. yard.
"It is next contended by counsel for the appellants in [CASE NUMBER] that the learned Additional District Judge is not justified in awarding damages at the rate of six per cent but relying upon judgment of this Court in [CASE NUMBER] in which damages as compensation were awarded [SECTION] and [SECTION] of the Act at the rate of six per cent of the compensation passed on the rate of interest given in [SECTION] of the Act. It is contended that the Act has been amended and the rate of interest now ranges from 9 to 15 per cent which should have been allowed to the appellants. In answer to this contention, learned counsel for the State has submitted that the appellants have not suffered any damages on account of withdrawal of the acquisition proceedings as the appellants are going to receive compensation at the rate of prevalent as on 15-12-1982 i.e. when notification [SECTION] of the Act was published.
12. The learned Additional District Judge for awarding damages has placed reliance upon decision of this Court in [CASE NUMBER] wherein the very contention new raised by the counsel for the State was not accepted as this Court was of the view that as per provisions of [SECTION] of the Act, determination of compensation for acquisition [SECTION] of the Act has nothing to do with the determination of compensation for damages suffered by the claimants. However, despite this legal position, I am of the view that in this case the appellants are not entitled to any enhancement in compensation on account of damages. It is true that since the decision of this Court in [CASE NUMBER] the Act has been amended and interest provided [SECTION] of the Act ranges between 9 to 15 per cent, but this amendment has come into being w.e.f. 24.9.1984 when the [ACT] received the assent of the President which is subsequent to notification issued Sec on 4 of the Act. [SECTION] of the Act, whenever the Government withdraws from acquisition any land, the Collector is required to determine the amount of compensation due for the damage suffered by the owner in consequence of the notice of acquisition or any proceedings there under, and the claimant is entitled to such amount together with all costs reasonably incurred in the prosecution of the proceedings under the Act. The damage so suffered by the owner is to be determined for the period during which notification [SECTION] of the Act remained operational. On the date when notification [SECTION] was withdrawn, interest allowable to the claimants [SECTION] was not more than six per cent. In this view of the matter, appellants are not entitled to damages more than what has been allowed to them by the learned Additional District Judge.
13. Although Mr. [ENTITY], Advocate, for appellants in [CASE NUMBER] has questioned the correctness of finding on issue No. 2 and contended that the learned Additional District Judge ought to have allowed compensation for standing crops, but 1 am not prepared to interfere with the finding on this issue. The Additional District Judge has not believed that the vegetable crops sown by the appellants in the beginning of September, 1985 would not have become ripe in a period of about four months for being harvested. Moreover, he found that the appellants did not produce any copy of [ENTITY] for kharif, 1985 and Rabi, 1986 to establish as to which crops had been sown in which killa number and as to whether or not the crops could not be harvested by 31.12.1985, i.e. the time allowed by the Land Acquisition Collector. I am also of the view that in absence of any documentary evidence as to which crops were standing at the time the possession was taken, appellants are not entitled to compensation for the alleged standing crops.
14. In [CASE NUMBER], appellant [ENTITY] who is also an Advocate, is not satisfied with the compensation awarded to him on account of fruit and non fruit trees. He contended that the Additional District Judge has not correctly assessed the valuation of fruit trees. In order to prove his contention he referred to the valuation made by Dr. [ENTITY] and one [ENTITY], Horticulture Supervisor in their reports, Exhs. P-36, P-37 and P-39 whereas learned counsel for the State submitted that the appellant is not entitled to enhancement as the Land Acquisition Collector has already awarded much more than what the appellant is entitled to.
15. The Land Acquisition Collector awarded sum of Rs. 9,44,000/- for 7650 Moringa trees. Appellant is not only disputing the valuation but also the number of trees which according to him were much more than what has been found by the learned Additional District Judge. Having heard his argument at length and on going through the record, I am of the view that the Additional District Judge is justified in not believing the statement of the appellant that there were in all 8050 Moringa trees on the acquired land belonging to the appellant. Appellant apart from giving his statement has not produced any other documentary evidence to prove that there were 8050 Moringa trees. Dr. [ENTITY] in his report has not given the total number of Moringa trees which he found standing at the time of inspection of the site. As regards the valuation Dr. [ENTITY] admitted in his cross-examination that he did not consult any recognised book in order to arrive at the valuation of Moringa trees, nor could he find any book which could give any formula for assessing the valuation for this type of trees. His statement that fruits of Moringa trees are sold for more than Rs. 5/- per kg. in Delhi, without he having purchased the same, was rightly found to be based on conjectures and surmises. Reports, Exh. P-39 made by [ENTITY], Horticulture Supervisor, too cannot bee accepted. Though in the report he has given the total number of Moringa trees in consonance with the number and category given in the award, yet he has not specified as to in which khasra numbers these trees were standing. Their number khasra wise, age and girth has not been mentioned. [ENTITY] has not been examined to prove his report. Accordingly, no reliance can be placed on such like reports. The learned Additional District Judge on the basis of report, Exh. PW-3/8 given by [ENTITY], Executive Engineer, Horticulture, HUDA, has assessed the market value of Moringa trees as on the date of notification to be Rs. 65,680.75p, whereas the Land Acquisition Collector has awarded Rs. 9,44,000/- for these trees which to my mind is more than what the appellant has been found entitled to. Therefore, no enhancement in compensation on this score is required to be made. For awarding compensation for Guava trees, again the report of [ENTITY] has been relied upon, whereas reports of [ENTITY] and [ENTITY], PW-14, have not been taken into consideration for the reason that [ENTITY] never appeared to prove his report and [ENTITY] had no previous experience in the job for evaluating the trees. Appellant though contended that report of [ENTITY] is not to be believed, yet I am of the view that his report is the only one which could be taken into consideration for assessing the valuation of trees. It may also be noticed that the learned Additional District Judge on the basis of report of [ENTITY] has put the value of Guava trees at Rs. 76,772/- and that too after allowing the increase proportionate to increase in price index at the rate of 25 per cent, whereas the Land Acquisition Collector had determined the value of these trees at kg. 1,91,930/-. Again the Land Acquisition Collector in his awarded, awarded Rs. 3,91,000/- for papaya trees whereas valuation of papaya trees on the basis of report, Exh. RW/8 has been determined at Rs. 25,937.50p. Likewise, the Land Acquisition Collector valued the Peach trees at Rs. 22,800/- whereas as per report of [ENTITY] valuation of these trees come to Rs. 5275/-. The Land Acquisition Collector also awarded compensation of Rs. 11,500/- for Anar trees but according to report of [ENTITY], no Anar trees was found in existence. In all, valuation of fruit trees determined according to the report of [ENTITY] comes to Rs. 2,95,000/- but the Land Acquisition Collector has awarded sum of Rs. 16,61,450/-. For men-fruit trees, appellant has been awarded Rs. 65,820/- by the Land Acquisition Collector but according to report of [ENTITY] total value of non-fruit trees comes to Rs. 5589.71p. This being so, appellant cannot complain that the amount of compensation determined for fruit and non-fruit trees is inadequate. It is no doubt odd that excess compensation given to a person by the Land Acquisition Collector to which he was not entitled to, cannot be recovered because of direction in [SECTION] of the Act to the effect that the amount of compensation awarded by the Court shall not be less than the amount awarded by the Collector [SECTION], but this is a defect in the Act and can be removed by the Legislature and not by the Courts. The Court cannot reduce the amount awarded by the Collector which exceeds the amount determined by the Court. It was for this reason that the State counsel submitted that the State is not a position to recover the excess amount which has been paid to the appellants for fruit and non-fruit trees.
16. In the result, the appeal filed by the land-owners are allowed to the extent that they are held entitled to compensation of their acquired land at the rate of Rs. 72/- per sq. yard with proportionate costs. They are further held entitled to grant of all statutory benefits of the amended provisions of [SECTION], [SECTION] and [SECTION] of the Act.