RFA No.884 of 1991 - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RFA No.884 of 1991 DATE OF DECISION: 16.04.2009 **** Suraj Bhan and others . . . . Appellants VS. State of Haryana through Collector Jind . . . . Respondent **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.M.L. Sarin, Sr. Advocate with Mr.Hemant Sarin, Advocate; Mr.S.K. Jain, Advocate and Mr.Akshay Jain, Advocate; Mr.A.K. Kansal, Advocate; for the appellants. Mr.H.S. Hooda, Advocate General with Mr.Lokesh Sinhal, Addl. A.G. for the State of Haryana. **** RAKESH KUMAR JAIN J.(ORAL) Identical questions of law and facts are involved in these 35 Regular First Appeals Nos. 884, 999, 1181 to 1185, 1258 to 1265, 1282 to 1285, 1427, 1459, 1460 to 1463, 1491, 1492, 1660, 1760 to 1764, 1887 and 2399 of 1991, filed by both, claimants as well as State of Haryana, challenging the award of the Additional District Judge, dated 10.1.1991. These appeals are being decided by a common order but the facts are being taken from Regular First Appeal No. 884 of 1991 titled as “Suraj Bhan and others vs. State of Haryana”. RFA No.884 of 1991 - 2 - Land measuring 73 kanals 18 marlas comprising in H.B. No.79 in the following Rectangle and Killa Nos.: K. M. 37 min 19 4 38 10 10 39/2 min 2 17 39/3/1 0 6 39/3/2 0 11 39/3/3/1 0 7 39/3/3/3/1 0 7 39/3/3/3/2 0 6 39/3/3/2 0 7 39/3/3/4/1 0 11 39/3/3/4/2 9 18 37 0 12 38 min 6 3 40 0 14 41 4 16 42 8 4 43 min 0 16 68/2 min 4 16 26 min North 2 3 37 min 0 10 Total 73 18 was notified under Section 4 of the Land Acquisition Act, 1894 (in short ‘the Act’) dated 25.8.1987 followed by a notification of declaration issued under Section 6 of the Act dated 4.8.1988, for the public purpose, namely, for the construction of building for Industrial Training Institute at Jind. Out of the total acquired land measuring 73 kanals 18 marlas, 63 kanal and 7 marla land was Chahi and remaining land measuring 8 kanal 11 marlas was Gair Mumkin. The Land Acquisition Collector (in short ‘the Collector) vide his award No.1 dated 30.10.1989 assessed the market value of the entire acquired land at the uniform rate of Rs.1 lac per acre. The land owners were not satisfied with the award of the Collector. They filed objections under Section 18 of the Act. In the objections, landowners claimed compensation up to Rs.15 lacs per acre. In order to substantiate their claim, the landowners RFA No.884 of 1991 - 3 - examined Badri Parshad (Property dealer) as PW1, Ramesh Kumar, Documents writer as PW2, Har Narain, (prospective vendee of agreement to sale Ex. P6) as PW3, Sudesh Kumar (vendor of agreement to sale Ex.P6) as PW4, Jagroop Singh as PW5, Ramesh Kumar, ME/MC, Jind as PW6, Raghu Nandan as PW7, Subhash Chand as PW8, J.N. Bansal as PW9, Jiwan Dass as PW10, Pushkar Dutt as PW11, Purshotam as PW12, Jai Bhagwan as PW13, Sham Lal as PW14, Moolak Raj as PW15, Krishan Kumar as PW16, Balbir Singh as PW17, Rajinder Kumar as PW18, Jagat Singh as PW19, Subhash Chand as PW20, Bansi Lal as PW21, Moti Ram as PW22. Claimants also tendered into evidence documents Ex.P1- Copy of sale deed, Ex.P2 – site plan, Ex.P3- copy of sale deed, Ex.P4 – master plan of Dayal colony, Ex. P5 - site plan, Ex.P6 – agreement to sell, Ex.P6/A cancellation of Ex.P6, Ex.P7 – copy of sale deed dated 10.4.1985, Ex.P8 – certificate issued by E.O., Ex.P9 – building permission letter, Ex.P10- site plan, Ex.P11- bill for house tax, Ex.P12, Receipt for paying house tax, Ex.P13 – Receipt for paying water charges, Ex.P14 – Site plan, Ex.P15 – Extension order (permit), Ex.P16 – copy of sale deed, Ex.P17-Copy of Mukhtiarnama, Ex.P18 to Ex.P20 – Sale deeds, Ex.P21 to Ex.P23 – copy of sale deeds, Ex.P24 & Ex.P25 – sale deeds, Ex.P26 to Ex.P28 –sale deeds, Ex.P29 – copy of sale deed, Ex.30 – Mukhtiarnama, Ex.31 – Site plan of Dayal colony, Ex.P32 – Copy of Mukhtiarnama of Chameli Devi, Ex.33 – Aksh-sajra, Ex.P34 to Ex.P37 – Copy of sale deeds, Ex.P38 - Site plan and estimate, Ex.P39 to P41 – Estimates, Ex.P42 – Photostat copy of sale deed of Satyawati, Ex.P43 – Sale deed of Ram Kumar, Ex.P44 – Sale deed of Krishna Devi, Ex.P45 to Ex.P48 – Sale deeds, Ex.P49 – RFA No.884 of 1991 - 4 - Estimate of Sh. Subhash Chand, Ex.P50 – Estimate of Bansi Lal, Ex.P51 – Site plan of Sh. Jai Bhagwan etc. As against this, the State of Haryana examined R.D. Sharma, Principal I.T.I. Jind as RW1 and tendered into evidence documents Ex.R1 to R.13. The learned reference Court, after taking into consideration evidence led by both the parties and more particularly Ex.P7 and P37, determined the compensation of the acquired land up to 75 feet on Jind – Chandigarh road @ 165/- per sq. yard and for the remaining land behind 75 feet @ Rs.1 lac per acre besides awarding all the statutory benefits in terms of the provisions of the amended Act. Mr.M.L. Sarin, learned senior counsel appearing on behalf of the claimants has vehemently argued that the learned reference Court has erred in only relying upon Sale Deeds Ex.P7 and Ex.P37 whereas there are other Sale Deeds Ex.P34, Ex.P35 and Ex.P36 which are also located in close proximity of the acquired land and the learned reference Court should have taken an average of all the five Sale Deeds Ex. P7, Ex.P34, Ex.P35, Ex.P36, Ex.P37 which would come to Rs.399 per sq. yards. The Sale Deeds referred to above are tabulated as under: Sale Deeds Exhibit Date of Sale Area Sold Amount Rate (per sq. yards) Ex.P7 10.4.1985 250 sq. yds 35000 140 Ex.P34 28.4.1987 42 sq. yds 26000 619 Ex.P35 13.10.1986 24 sq. yds 13000 541 Ex.P36 13.10.1986 49 sq. yds 26000 530 Ex.P37 29.6.1987 9 -1/3 marla 47000 167 as per ADJ Average = 399.4 The second argument of the learned counsel for the claimants is that there is an agreement to sell (Ex.P6) on record RFA No.884 of 1991 - 5 - dated 21.10.1986 vide which 201.66 Sq. Yards of land was agreed to be sold @ Rs.47996.65 Paisa which comes to Rs.238 per Sq. yards. The said agreement to sell was cancelled vide Ex.P6/A on 20.10.1987 due to the notification of the land for acquisition. It is submitted that the reference Court has erred in discarding the agreement to sell that the same has been procured. It is further argued by the learned counsel for the claimants that the reference court has awarded compensation @ Rs.165 per Sq. Yards only up to the depth of 75 feet keeping in view the depth of house of Jagroop Singh (PW5) and had awarded Rs.1 Lac per acre for the rest of the land although the entire land falls within the Municipal Limits and has got the same potentiality of being developed as a residential area. In this regard, the learned counsel for the claimants has prayed for applying the flat rate in view of the decision of this court in the case of “Harchal Singh vs. the State of Punjab through land acquisition Collector, Industries Department, Pb. Chandigarh” 1991 LACC (P&H) 203 and “The Jalandhar improvement trust, Jalandhar vs. Vidya Suri (SMT) and others” 2006(1) PLR 153 . As against this, Mr.H.S. Hooda, learned Advocate General of Haryana has vehemently contended that so far as the Sale Deeds Ex. P34, Ex.P35 and Ex.P36 are concerned, those have rightly been not taken into consideration by the learned reference Court on the ground that they are very small piece of land and are entirely commercial in nature located on a busy road much less at Subhash Chowk having all together different price tags because of its value and utility. It is also submitted that the sale instances which are not comparable and have different features cannot be clubbed together for the purposes of ascertaining the market value of the acquired land by the method of averaging. In this regard, learned counsel for the State relied upon a decision of the Supreme RFA No.884 of 1991 - 6 - Court in the Case of ”M/s Printers House Pvt. Ltd. Vs. Mst. Saiyadan (deceased) by LR’s and others” AIR1994 SC 1160 . In respect of the agreement to sell, it is submitted that the same was not found to be genuine document because the Deed Writer has admitted that he would enter every agreement to sell in his Register maintained by him but for these two documents, namely, agreement to sell and the cancellation, which have not been entered by him in his Register. In respect of the uniform rate, it is submitted that the reference Court has rightly adopted belting system because Sale Deeds Ex.P7 and Ex.P37 are both abutting Jind-Chandigarh road and possess more potentiality than the land which is on their rear side in respect of which Jagroop Singh (PW5) has deposed that there is cremation ground only 2 Killas away from the acquired land and since 1966 there is no construction at all in the land in question which is 5 feet lower than the mettalled road. It is thus submitted that the entire acquired land cannot be equated with the land abutting the road. While pursuing the appeals filed by the State of Haryana for the purposes of seeking reduction in the compensation, it is submitted by the learned counsel for the State that the learned reference Court has erred while relying upon a small piece of land vis-à-vis large chunk of land without applying a normal cut. In this regard, Mr.M.L. Sarin, learned senior counsel for the claimants vehemently contended that the entire land falls within the Municipal limits and even if the comparable sale instances are of small piece of land no cut should be applied as in the Municipal limits it would be hard to find the sale instances of big chunk of land. It is further submitted by him that road, water, electricity and other amenities are already available at the site as house of Jagroop Singh (PW5) is already in existence. He also RFA No.884 of 1991 - 7 - refers to the statement of PW12 with regard to the availability of water and other amenities. I have heard both the learned counsel for the parties and perused the record with their assistance. In respect of the first argument raised by the learned counsel for the appellant that the learned reference Court should have taken into consideration Sale Deeds Ex.P7, Ex.P34, Ex.P35, Ex.P36 and Ex.P37 for the purposes of taking an average and awarding compensation, my attention has been drawn to the Site Plan Ex.P14 in which Sale deeds Ex.P34, Ex.P35 and Ex.P36 which are the shops of Sh. Pawan Kumar, Smt. Salochna Rani and Smt.Motiya Rani, are located on busy crossing called Subhash Chowk and particularly on the junction road, Jind. These three sale instances are of 42 Sq. Yards, 24 Sq. Yards and 49 Sq. Yards respectively, which are apparently sold for the commercial purpose, therefore, they cannot be equated with the other two Sale Deeds Ex.P7 and Ex.P37 which are not only adjacent to the acquired land but are also having the different features of being used for residential purposes. In this regard, I am fully in agreement with the decision of the Supreme Court in the case of M/s Printers House Pvt. Ltd. (supra) in which it has been held that the Court has to mark the location and the features (advantages and disadvantages) of the land covered by the sale or the award. This process involves the marking by Court of the size, shape, tenure, potentiality etc. of the land involved. If it is found that the land covered by the sale or the award, as the case may be, is almost identical with the acquired land under consideration, the land under the sale or the market value determined for the land in the award could be taken by the Court as the ‘price basis’ for determining the market value of the acquired land under RFA No.884 of 1991 - 8 - consideration. If there are more comparable sales or awards of the same type, no difficulty arises since the ‘price basis’ to be got from them would be common. But, difficulty arises when the comparable sales or awards are not of the same kind and when each of them furnish a different ‘price basis’. This difficulty cannot be over come by averaging the prices fetched by all the comparable sales or awards for getting the ‘price basis’ on which the market value of the acquired land could be determined. What is required of the Court is to choose that sale or award relating to a land which closely or nearly compares with the plot of land, the market value of which it has to determine, and to take the price of land of such sale or award as the basis for determining the market value of the land under consideration. Thus, in my view the Sale Deeds Ex.P34, Ex.P35, Ex.P36 cannot be clubbed together with Sale deeds Ex.P7 and Ex.P37 which have already been considered by the reference Court for the purposes of taking the average and determining the market value. Thus the argument raised by the claimants in this regard is rejected. Insofar as the agreement to sell is concerned, I do not find it to be a genuine transaction because both the documents Ex.P6 and Ex.P6/A have been scribed by Ramesh Kumar PW2 who admitted that he maintains a register in which all the deeds scribed by him are entered but the said documents Ex.P6 and Ex.P6/A were not entered by him in his register. No explanation has been given in this regard. Thus, in my view, the documents Ex.P6 and Ex.P6/A have been prepared only in order to create an additional evidence for the purposes of inflating the market value of the acquired land. The last argument raised by the learned counsel for the claimants is not found to be convincing that the compensation RFA No.884 of 1991 - 9 - awarded by the reference Court should have been uniform for the entire acquired land because it has come in statement of most of the witnesses produced by the claimants that the acquired land is in close vicinity of the cremation ground. It has also come in evidence that since 1966 till the date of acquisition, the entire land was lying vacant and as there is no construction though it is within the Municipal limits of Jind and the acquired land is also low lying having a depth of about 5 feet from the mettalled road. Therefore, the learned reference Court has not erred in awarding compensation up to the depth of 75 feet from the mettalled road on the basis of the sale deeds available depicting the market value of the acquired land and at a flat rate of Rs.1 lac per acre for the land beyond 75 feet. In the case of Harchal Singh (supra) uniform compensation was granted on the ground that if the acquired land has attained the potential for urbanization then the same cannot be considered and classified on the basis of the agricultural quality. In the case of The Jalandhar improvement trust, Jalandhar (supra) the same finding has been given that if the land is situated within the Municipal limits then it cannot be treated to be merely agricultural in nature. The aforesaid two judgments are not applicable to the facts of the present case because in the present case the classification is not on the basis of the land being Urban or Agricultural rather the classification is only on the basis of that there are only two sale instances which are abutting the mettalled road and it is an admitted fact on record that since 1966 there has been no construction in and around the acquired land due to its nearness to the cremation ground and being low lying from the mettalled road. Thus, the reasoning adopted by the learned RFA No.884 of 1991 - 10 - reference Court in this regard does not call for any interference. In so far the reduction cut is concerned, it has already come on record that all the amenities like road, water and electricity are already available at the site because the house of Jagroop Singh (PW5) is in existence coupled with the fact that PW12 has also stated about the availability of water and other amenities. After taking into consideration all the facts and circumstances of this Case, I am of the considered view that there is no error in the award of the learned reference Court. Thus, the appeals, filed by the claimants as well as the State of Haryana, are found devoid of any merit and are hereby dismissed without any order as to costs. (RAKESH KUMAR JAIN) APRIL 16, 2009 JUDGE vivek