R.F.A. No. 2253 of 1998 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: July 26,2010 (1) RFA No. 2253 of 1998 (O&M) and Cross Objections No.27-CI of 1999 Punjab State and Others .....Appellants Versus Nirmal Singh and another .....Respondents (2) RFA No. 381 of 2002 (O&M) & Cross Objections No.38-CI of 2002 Union of India .....Appellant Versus Bhag Singh and others .....Respondents (3) RFA No. 382 of 2002 (O&M) Union of India .....Appellant Versus Sunder Singh and others .....Respondents (4) RFA No. 701 of 2002 (O&M) Union of India .....Appellant Versus Charan Singh and others .....Respondents R.F.A. No. 2253 of 1998 [2] (5) RFA No. 702 of 2002 (O&M) Union of India .....Appellant Versus Mehar Singh (deceased) through LRs and others .....Respondents (6) RFA No. 703 of 2002 (O&M) & Cross Objections No.29-CI of 2002 Union of India .....Appellant Versus Nirmal Singh and others .....Respondents (7) RFA No. 704 of 2002 (O&M) & Cross Objections No.34-CI of 2002 Union of India .....Appellant Versus Tarlok Singh and others .....Respondents (8) RFA No. 705 of 2002 (O&M) and Cross Objections No.30-CI of 2002 Union of India .....Appellant Versus Jagir Singh and others .....Respondents (9) RFA No. 706 of 2002 (O&M) and Cross Objections No.31-CI of 2002 Union of India .....Appellant Versus Chanan Singh and others .....Respondents R.F.A. No. 2253 of 1998 [3] (10) RFA No. 707 of 2002 (O&M) and Cross Objections No.37-CI of 2002 Union of India .....Appellant Versus Parkash and others .....Respondents (11) RFA No. 708 of 2002 (O&M) and Cross Objections No.36-CI of 2002 Union of India .....Appellant Versus Sadhu Singh and others .....Respondents (12) RFA No. 709 of 2002 (O&M) and Cross Objections No.32-CI of 2002 Union of India .....Appellant Versus Lashkar Singh and others .....Respondents (13) RFA No. 710 of 2002 (O&M) and Cross Objections No.33-CI of 2002 Union of India .....Appellant Versus Harbans Singh and others .....Respondents (14) RFA No. 711 of 2002 (O&M) Union of India .....Appellant Versus Naranjan Singh and others .....Respondents R.F.A. No. 2253 of 1998 [4] (15) RFA No. 922 of 2003 (O&M) Collector Land Acquisition, Industries Department, Punjab and others .....Appellants Versus Bhag Singh and others .....Respondents (16) RFA No. 923 of 2003 (O&M) Collector Land Acquisition, Industries Department, Punjab and others .....Appellants Versus Tarolok Singh and another .....Respondents (17) RFA No. 924 of 2003 (O&M) Collector Land Acquisition, Industries Department, Punjab and others .....Appellants Versus Nirmal Singh and another .....Respondents (18) RFA No. 925 of 2003 (O&M) Collector Land Acquisition, Industries Department, Punjab and others .....Appellants Versus Jagir Singh and another .....Respondents (19) RFA No. 926 of 2003 (O&M) Collector Land Acquisition, Industries Department, Punjab and others .....Appellants Versus Chanan Singh (deceased) through LRs and others .....Respondents R.F.A. No. 2253 of 1998 [5] (20) RFA No. 927 of 2003 (O&M) Collector Land Acquisition, Industries Department, Punjab and others .....Appellants Versus Parkash and another .....Respondents (21) RFA No. 928 of 2003 (O&M) Collector Land Acquisition, Industries Department, Punjab and others .....Appellants Versus Lashkar Singh and another .....Respondents (22) RFA No. 929 of 2003 (O&M) Collector Land Acquisition, Industries Department, Punjab and others .....Appellants Versus Sadhu Singh and another .....Respondents (23) RFA No. 930 of 2003 (O&M) Collector Land Acquisition, Industries Department, Punjab and others .....Appellants Versus Harbans Singh and others .....Respondents (24) RFA No. 931 of 2003 (O&M) Collector Land Acquisition, Industries Department, Punjab and others .....Appellants Versus Naranjan Singh (deceased) through LRs and another .....Respondents R.F.A. No. 2253 of 1998 [6] (25) RFA No. 932 of 2003 (O&M) Collector Land Acquisition, Industries Department, Punjab and others .....Appellants Versus Mehar Singh (deceased) through LRs and another .....Respondents (26) RFA No. 933 of 2003 (O&M) Collector Land Acquisition, Industries Department, Punjab and others .....Appellants Versus Charan Singh and another .....Respondents (27) RFA No. 934 of 2003 (O&M) Collector Land Acquisition, Industries Department, Punjab and others .....Appellants Versus Sunder Singh and another .....Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Puneet Jindal, Advocate for Union of India. Mr. Yatinder Sharma, Deputy Advocate General, Punjab. Mr. S. S. Kamboj and Mr. Naresh Parbhakar, Advocates for the land owners. Rajesh Bindal J. This order will dispose of above mentioned appeals, as common questions of law and facts are involved. The Union of India/State are in appeal seeking reduction in the amount of compensation awarded by the learned court below for the acquired land. In some of the appeals, the land owners have filed objections seeking enhancement of compensation for the acquired land. Briefly, the facts of the case are that vide notification dated R.F.A. No. 2253 of 1998 [7] 11.1.1989, issued under Section 4 of the Land Acquisition Act, 1894 (for short, `the Act'), State of Punjab acquired 81.39 acres of land situated in village Hussainpur for expansion of Rail Coach Factory Complex at village Hussainpur. The same was followed by notification dated 2.6.1989, issued under Section 6 of the Act. The Land Acquisition Collector (for short, `the Collector') divided the land into three categories and assessed compensation @ ` 91,348.90 per acre for Chahi kind of land and ` 42,384/- per acre for Barani and Gair Mumkin kind of land. Dissatisfied with the award of the Collector, the land owners filed objections. On reference under Section 18 of the Act, the learned court below assessed the market value of the acquired land @ ` 2,25,000/- per acre. Learned counsel for the Railways/State submitted that the sale deeds produced on record by the land owners are not at all relevant for the purpose of determination of fair value of the acquired land. As is evident from a perusal of the record, sale deeds (Ex. A21 and Ex. A22) pertained to village Saido Bhulana. The land dealt with in sale deed (Ex. A23) pertained to village Ladhewal, whereas those of sale deeds (Ex. A24 and Ex. A28) pertained to village Bahuie. The land pertaining to sale deed (Ex. A25) pertained to village Jalal Bhulana. Sale deeds (Ex. A26 and Ex. A27) pertained to village Saido Bhulana. As far as sale deeds (Ex. A29 to Ex. A31) are concerned, though the same pertained to village Hussainpur, but the same are also irrelevant for the reason that these were registered more than 4 years after the issuance of notification under Section 4 of the Act. As against that, the sale deeds produced on record by the State (Ex. R4 and Ex. R5) which pertained to the same village have not been considered at all. Still further, the submission was that the land pertaining to none of the sale deeds has been pointed out on any of the site plans produced on record. He further submitted that if the learned court below was considering some of the sale deeds produced by the land owners to be relevant for the purpose of taking the average thereof to award compensation to the land owners, even the sale deeds produced by the State also deserved to be considered for that purpose. On the other hand, learned counsel for the land owners/cross- objectors submitted that the value, as has been assessed by the learned court below, deserves further enhancement considering the evidence produced on record by the land owners. In fact, the area in the vicinity had already been developed as Rail Coach Factory had already been set up. The sale deeds of the neighbouring villages produced by the land owners were relevant for the reason that the same were comparable sale transactions as the land pertaining to those sale deeds was similarly situated. Abadi of village Hussainpur was merely at a distance of half R.F.A. No. 2253 of 1998 [8] kilometer from the acquired land. It was surrounded by factories, shops and residential houses. It had great future potential for being developed for commercial and residential purposes. A clear finding has been recorded by the learned court below to that effect. Heard learned counsel for the parties and perused the relevant referred record. The land owners in the present case produced on record the following sale deeds: “Sr. No. Date Area Village/Revenue Sale price Average price Estate in ` per acre in ` .................................................................................................................................................... 1. Ex. A21 13.9.89 1K-4M Saido Bhulana 1,20,000/- 8,00,000/- 2. Ex. A22 9.12.87 0K-7M Saido Bhulana 38,500/- 8,80,000/- 3. Ex. A23 11.2.87 4K-2M Ladhewal 1,64,000/- 3,20,000/- 4. Ex. A24 18.2.87 8K-0M Bahuie 1,92,000/- 1,92,000/- 5. Ex. A25 11.1.88 2K-5M Jalal Bhulana 40,000/- 1,42,250/- 6. Ex. A26 16.9.88 2K-0M Saido Bhulana 48,000/- 1,92,000/- 7. Ex. A27 25.4.88 1K-0M Saido Bhulana 30,000/- 2,40,000/- 8., Ex. A28 29.1.86 0K-10M Bahuie 35,000/- 5,60,000/- 9. Ex. A29 28.5.93 5K-0M Hussainpur 1,56,250/- 2,50,000/- 10. Ex.A30 28.5.93 4K-0M Hussainpur 1,25,000/- 2,50,000/- 11. Ex.A31 24.5.93 4K-0M Hussainpur 1,25,000/- 2,50,000/-” The State also produced the following sale deeds: “Sr. No. Date of Area Village/Revenue Sale price Average price Sale Estate in ` per acre in ` .................................................................................................................................................... 1. Ex. R4 28.3.88 10M Hussainpur 3,500/- 56,000/- 2. Ex. R5 29.8.88 1K-0M -do- 10,000/- 80,000/-” A perusal of the evidence led by the land owners shows that all the sale deeds (Ex. A21 to Ex. A28) pertained to different villages, to which the land in question belongs. No site plan was referred to at the time of hearing by either of the parties showing the location of the land pertaining to the aforesaid sale deeds. A perusal of the award of the learned court below shows that sale transactions (Ex. A21 and Ex. A23 to Ex. A27) were considered relevant for the purpose of assessment of fair value of the acquired land. However, prior to that, while discussing the relevance of sale deed (Ex. A24) relating to village Bahuie was rejecting finding the same to be not relevant having been located at quite a distance from the acquired land, but as is evident from final discussion, sale deeds (Ex. A23 to Ex. A27) were shown to have been considered for the purpose of R.F.A. No. 2253 of 1998 [9] assessment of fair value of the acquired land. There is apparent error even in the calculation made by the learned court below. If the average of the consideration paid in sale deeds (Ex. A21, Ex. A23 to Ex. A27) are considered, the same would come to ` 3,14,375/- per acre and not ` 3,04,800/- per acre, as as been mentioned by the learned court below. As far as sale deeds (Ex. A28 to Ex. A31) are concerned, the same, in my opinion, were rightly rejected by the learned court below, though the aforesaid sale deeds pertained to village Hussainpur itself, as these were registered more than 4 years after the issuance of notification under Section 4 of the Act in the present case. These were the transactions for 4/5 kanals of land entered into at an average price of ` 2,50,000/- per acre. As against this, though not pointed out at the time of hearing by any of the counsel, two sale deeds produced on record by the State (Ex. R4 and Ex. R5) pertained to the acquired land, as is evident from site plan (Ex. R1). The learned court below rejected the same by recording that the value shown therein is less than the award of the Collector, accordingly, those are liable to be rejected. However, the court had not recorded a finding that what was the quality of land dealt with therein. The Collector had awarded different rates for different kinds of land. If the land dealt with in the aforesaid sale deeds was Chahi in kind, then certainly the observation of the learned court below may be right, but if it was of Barani or Gair Mumkin kind, the observation would be totally perverse, as the value shown in the sale deeds is much more than the award of the Collector pertaining to that quality of land. At the time of hearing, learned counsel for the parties did not refer to any material on record, from which it can be established that quality of land dealt with in the aforesaid sale deeds was Chahi or any other kind. Further, site plan (Ex. A11) produced on record by the land owners, though was referred to and relied upon by the learned court below for the purpose of recording a finding that the land in question had great future potential as it was located quite close to the already developed area and the site plan was referred to as aks shijra. However, what can be noticed from a perusal of the site plan is that it has not been made to scale. The distances as such from various points have been noticed only on the basis of oral evidence. What can be opined from the material on record is that the land owners in the present case have failed to lead clinching evidence which could enable the Court to reach a conclusion that fair value of the acquired land was in terms of the claim made by them. Though they had produced various sale deeds on record, which in my opinion, is not enough as the onus to prove that the R.F.A. No. 2253 of 1998 [10] compensation as assessed by the Collector was not adequate is always on the land owners, who is in the position of a plaintiff. Reference for the purpose can be made to Para 28 of the judgment of Hon'ble Supreme Court in Sangunthala (Dead) through LRs. Vs. Special Tehsildar (L.A.) and Ors. 2010(2) Recent Apex Judgments 286. “28. It is settled that the burden of establishing/proving the market value of the lands is always on the claimants. In Periyar and Pareekanni Rubbers Ltd. v. State of Kerala, 1991(1) R.R.R. 427 : AIR 1990 SC 2192, this Court held that it is the duty of the Court to determine just and fair market value. It was further held that the claimants should produce necessary evidence on the value of land since the burden of proof is on them to establish the higher compensation claimed. While agreeing with the judgment in Periyar and Pareekanni Rubbers Ltd (Supra), this Court in the case of Special Deputy Collector & Another v. Kurra Sambasiva Rao & Others, (1997) 6 SCC 41, held that in a claim for enhancement of compensation the burden of proof was on the claimants that land was capable of fetching higher compensation. Further in the case of Kiran Tandon v. Allahabad Development Authority and another, 2004(3) R.C.R.(Civil) 3 : (2004) 10 SCC 745, it was held that the burden of proving that the amount of compensation awarded by the Collector is inadequate lies upon the claimant and he is in the position of a plaintiff.” In case titled as Viluben Jhalejar Contractor (D) By LRs. Vs. State of Gujarat, 2005(2) RCR (Civil) 492, the Hon'ble Supreme Court laid down certain broad principles for determination of compensation for the acquired land. Relevant paras are reproduced hereunder:- 17.Section 23 of the Act specifies the matters required to be considered in determining the compensation; the principal among which is the determination of the market value of the land on the date of the publication of the notification under sub-section (1) of Section 4. 18.One of the principles for determination of the amount of compensation for acquisition of land would be the R.F.A. No. 2253 of 1998 [11] willingness of an informed buyer to offer the price therefor. It is beyond any cavil that the price of the land which a willing and informed buyer would offer would be different in the cases where the owner is in possession and enjoyment of the property and in the cases where he is not. 19.Market value is ordinarily the price the property may fetch in the open market if sold by a willing seller unaffected by the special needs of a particular purchase. Where definite material is not forthcoming either in the shape of sales of similar lands in the neighbourhood at or about the date of notification under Section 4(1) or otherwise, other sale instances as well as other evidences have to be considered. 20.The amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-a-vis the land under acquisition by placing the two in juxtaposition. The positive and negative facts are as under :- _______________________________________________________ Positive facts Negative factors _______________________________________________________ (i) smallness of size (i) largeness of area (ii) proximity to a road (ii) situation in the interior at a distance from the road (iii) frontage on a road (iii) narrow strip of land with very small frontage compared to depth (iv) nearness to developed (iv) lower level requiring area the depressed portion to be filled up (v) regular shape (v) remoteness from developed locality (vi) level vis-a-vis land under (vi) some special under acquisition disadvantageous factors which would deter a purchaser R.F.A. No. 2253 of 1998 [12] (vii)special value for an owner of an adjoining property to whom it may have some very special advantage. ____________________________________________________ 21. Whereas a smaller plot may be within the reach of many, a large block of land will have to be developed preparing a layout plan, carving out roads, leaving open spaces, plotting out smaller plots, waiting for purchasers and the hazards of an entrepreneur. Such development charges may range between 20% and 50% of the total price.” In case titled as Haridwar Development Authority, Haridwar Versus Raghubir Singh etc., 2010(2) RCR (Civil) 301, the Hon'ble Supreme Court opined as under:- “6. The question whether the acquired lands have to be valued uniformly at the same rate, or whether different areas in the acquired lands have to be valued at different rates, depends upon the extent of the land acquired, the location, proximity to an access road/Main Road/Highway or to a City/Town/Village, and other relevant circumstances. We may illustrate: (A) When a small and compact extent of land is acquired and the entire area is similarly situated, it will be appropriate to value the acquired land at a single uniform rate. (B) If a large tract of land is acquired with some lands facing a main road or a national highway and other lands being in the interior, the normal procedure is to value the lands adjacent to the main road at a higher rate and the interior lands which do not have road access, at a lesser rate. (C) Where a very large tract of land on the outskirts of a town is acquired one end of the acquired lands adjoining the town boundary, the other end being two to three kilometers away, obviously, the rake that is adopted for the land nearest to the town cannot be adopted for the land which is farther away from the town. In such a situation, what is known as a R.F.A. No. 2253 of 1998 [13] belting method is adopted and the belt or strip adjacent to the town boundary will be given the highest price, the remotest belt with be awarded the lowest rate, the belts/strips of lands falling in between, will be awarded gradually reducing rates from the highest to the lowest. (D)Where a very large tract of land with a radius of one to two kilometres is acquired, but the entire land acquired is far away from any town or city limits, without any special Main road access, then it is logical to award the entire land, one uniform rate. The fact that the distance between one point to another point in the acquired lands, may be as much as two to three kilometres may not make any difference.” In case titled as Thakur Kuldeep Singh (D) Thr. L.R. & Ors. Versus Union of India and Ors., 2010(2) RCR (Civil) 372, the Hon'ble Supreme Court opined as under:- “6. Sections 23 and 24 of the Act speak about the matters to be considered and to be neglected in determining compensation. Let us consider whether the appellants are entitled to higher compensation than that of the one fixed by the High Court or Union of India is justified in seeking reduction of the market value/compensation for the acquired land. While fixing compensation, it is the duty of the Land Acquisition Collector as well as the Court to take into consideration the nature of the land, its suitability, nature of the use to which the lands are sought to be acquired on the date of notification, income derived or derivable from or any other special distinctive feature which the land is possessed of, the sale transactions in respect of land covered by the same notification are all relevant factors to be taken into consideration in determining the market value. It is equally to consider the suitability of neighbourhood lands as are possessed of similar potentiality or any advantageous features or any special characteristics available. The Land Acquisition Collector as well as the Court should always keep in their mind that the object of assessment is to arrive at a reasonable and adequate market value of the land. While doing so, imagination should be eschewed and mechanical assessment R.F.A. No. 2253 of 1998 [14] of evidence should be avoided. More attention should be on the bona fide and genuine sale transactions as guiding star in evaluating the evidence. The relevant factor would be that of the hypothetical willing vendor would offer for the land and what a willing purchaser of normal human conduct would be willing to buy as a prudent man in normal market conditions prevailing in the open market in the locality in which the acquired lands are situated as on the date of notification under Section 4(1) of the Act. In other words, the Judge who sits in the armchair of the willing buyer and seek an answer to the question whether in the given set of circumstances as a prudent buyer he would offer the same market value which the court proposed to fix for the acquired lands in the available market conditions. The market value so determined should be just, adequate and reasonable.” What has been felt in the present case is that even the State failed to discharge its duties. It cannot be disputed that the State should always be fair to its subjects. If the land had been acquired, the first and foremost duty of the Collector is to award compensation, which is just and fair, but what is seen in most of the cases is that the compensation assessed is quite meager and the land owners aggrieved against that approach the court for further enhancement. Whenever the matter comes to the court, it is the foremost duty of the State as well to produce relevant and fair evidence on record to show the value of land at the time of acquisition. What is seen is that this is not done. Dealing with a case under similar circumstances, this Court in R.F.A. No. 3008 of 2008 –Smt. Poonam v. State of Haryana and another, decided on 25.2.2009, observed as under: “This court is constrained to comment upon the conduct of the State as well as HUDA for the reason that even though they had notice of the fact that the land owners had produced on record various sale deeds showing the consideration paid therein ranging from Rs. 12,00,000/- to Rs. 80,00,000/- per acre, no documentary evidence was led by the State or HUDA to rebut this evidence. In many cases, earlier HUDA had been raising hue and cry that while determining the compensation payable for the land acquired for their use and benefit, for which though they have to bear the burden of enhanced compensation, no opportunity of hearing is afforded to them. What is generally seen is that practically no evidence is led by HUDA in R.F.A. No. 2253 of 1998 [15] any of the cases before the Reference Court and similar is the position with regard to addressing arguments before the