1 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE (D.B. Hon'ble Shri P.K. Jaiswal & Hon'ble Smt. S.R. Waghmare, J,J.) F.A. No. 95/2000 State of M.P. thr. Collector District Dewas and Anr. V/s. Kamlesh Kumar S/o Beni Madhav Mishra. Shri S.D. Bohra, learned Govt. Advocate for appellants-State. Shri A.S. Garg, learned Senior Advocate with Shri G.S. Yadav, Advocate for the respondent. ***** F.A. No.112/2000 Kamlesh Kumar S/o Beni Madhav Mishra. V/s. Karyapalan Yantri Lok Nirman Vibhag and Anr. ***** Shri A.S. Garg, learned Senior Advocate with Shri G.S. Yadav, Advocate for the appellant. Shri S.D. Bohra, learned Govt. Advocate for respondents- State. ***** (JUDGMENT) 14 .10.2011 Per P.K. Jaiswal, J:- Both these appeal are filed against the order dated 23.12.1999 passed by District Judge, Dewas in land acquisition case no.5/98, whereby reference Court enhanced the amount of compensation from Rs.7,23,369/- to Rs.70,69,887/-. The reference Court after deducting the amount awarded by the land acquisition officer directed to pay a sum of Rs.63,46,518/- as compensation to the land owner. The reference Court also awarded interest @ of 9% per annum under Section 34 of the Land Acquisition Act, 2 1894 for the period of 1.10.1997 to 30.9.1998 amounting to Rs.2,79,000/- as per sub para 2 of para 21 of the impugned order. 2. The facts of these two appeals are identical. For the sake of convenience, the facts are being taken from First Appeal No.95/2000. 3. Respondent's land measuring 23887 Sq.ft (0.222 hectares) in survey no.391 at village Lohar Pipliya, Tehsil and Distrcit Dewas, was acquired pursuance to the preliminary notification published on 16.12.1994. 4. The land acquisition officer had granted compensation @ of 7.81 per Sq. ft and awarded Rs.4,77,389/- towards site development, loss of profit and shifting expenses of business to other place. Thus, the total amount of Rs.7,23,369/- was awarded by the land acquisition officer by its award dated 4.10.1997 passed in reference case no.4/A-82/94-95 under Section 11 of the Land Acquisition Act, 1894 (herein after referred to as “the Act”) The reference Court on appeal enhanced the amount of compensation from Rs.7,23,369/- to Rs.70,69,887/- with interest as per para 21 of the impugned order. The compensation of land was calculated @ of Rs.150/- per Sq. ft. 5. The preliminary notification under Section 4 (1) of the Act was issued on 16.12.1994. The declaration under Section 6 of the Act was issued on 15.12.1995. The land was acquired for construction of Indore-Dewas four lane bye-pass road between Indore and Dewas. The landowner's petrol pump is located on a piece of land sought to be acquired and he is running his business of diesel and petrol in the name of style of 'Mahashakti Filling Point' at Kshipra, District Dewas. The said petrol pump is situated on National Highway popularly known as A.B. Road. The proceeding of acquisition was challenged by land owner by filing Miscellaneous Petition No.84/96, which was dismissed on 3 26.3.1997. During pendency of Letters Patent Appeal settlement had arisen between parties on 23.7.1997. In terms of settlement the LPA was disposed of. After disposal of LPA possession of the land was given to the appellant-State on 30th September, 1997. 6. The respondent-landowner dissatisfied with the award of land acquisition officer dated 4.10.1997 filed a reference application before the land acquisition officer on 15.10.1997 and a prayer was made that the matter be referred to the District and Sessions Judge, Dewas. The land acquisition officer, Dewas forwarded the reference application to civil Court in proforma VII under Section 18 of the Act on 5.5.1998. 7. It is alleged in the reference application that the land is situated on main Agra-Bombay Raod at village Lohar Pipliya just near to Dewas and is already diverted for a commercial use. Over the said land, the landowner is running a petrol pump. The sales room (cabin) and office is built in RCC super structure. Doors and windows are of steel frame. The flooring is made of mosaic tiles and lavatories are of glazed tiles. There is water and electrical connection, septic tank for drainage facility. The built up area of sales rooms measuring 366 Sq.ft. and total built up area is 1043 Sq. ft. The cost of construction rate is @ Rs.350/- and Rs.300/- per Sq. ft. respectively. The land owner also filed a copy of the sale deed (Ex.P/3) in respect of an area of 600 Sq.ft. of plot No.58 which is diverted for residential purpose, situated at village Lohar Pipliya. The value as mentioned in registered sale deed is Rs.100/- per Sq. ft. It is alleged that Ex.P/3, which is a copy of sale deed of plot No.58 is in respect of residential area which is at the back side and 200 ft. behind the petrol pump. The land of the respondent is adjoining to national highway No.3 and the value of the land is @ of Rs.150 per Sq. ft. 8. The landowner also claimed compensation towards the cost 4 of office, small room and removal of petrol tank filling point no.1 and 2, cost of other items and shifting charges as stated in the reference petition. The appellants- State filed their written reply to the claim petition and denied all the averments made in the claim petition. In respect of market value of the land it is alleged that no document has been filed by the landowner to prove that the market value of the land was Rs.150/- per Sq. ft. 9. The landowner in support of his claim filed a valuation report of authorized surveyor/investigator (Ex.P/1) and sale deed dated 20.10.1995 (Ex.P/3). In support of his claim he has examined Sunil Gupta (PW1), authorized valuer. Sitlesh Kesharwani (PW2), owner of the land purchased by him vide (Ex.P/3), landowner Kamlesh Kumar Mishra Ex.P/3 and Rajesh Mishra. The State has examined Kailashchandra Jain(DW1). 10. The proposal of acquisition of land was made by the Executive Engineer, Public Works Department, National Highway Division, Indore to the Collector Dewas for Dewas-Indore four- lane bye-pass road. 11. It is submitted by the learned Government Advocate that the approach of the reference Court was much excessive and the reference Court has not duly appreciated the evidence on record. The next contention is that on each head excessive amount has been awarded by the reference Court to the landowner. It is also submitted that learned reference Court without considering the fact that on the basis of report of Sub-Registrar Dewas, land acquisition officer assessed the value of the land at the rate of Rs.7.81 per Sq. ft. The reference Court without any cogent reasons accepted the (Ex.P/1) valuation report of PW1 and had fixed the compensation @ Rs.150 per Sq. ft. He further submitted that as per Section 23 of the Act the market value of the acquired land has to be assessed on the date of publication of the notification under 5 Section 4, Sub-section (1) of the Act. He has further submitted that sale deed (Ex.P/3) is of 1995. It is also contended that market value is to be determined according to the use of land as on the date of notification under Section 4. With the aforesaid, it is prayed that the appeal filed by the State be allowed. 12. On the other hand, learned Senior counsel for the landowner has submitted that the market value means what a willing purchaser would pay to a willing seller for the property, having regard to the advantages available to the land and the development activities which may be going on in the vicinity and potentiality of the land. He has further submitted that the market value may be ascertained on the basis (i) opinion of experts (ii) price of land within a reasonable time of bonafide transactions of value of purchase of land acquired or the land adjacent to the land acquired and possessing similar advantage; and; (iii) number of years purchased of the actual or immediately perspective parts of the land acquired. The Court is required to arrive as nearly as possible at the estimate of real market value by choosing one method or two on all methods. 13 We have heard the arguments of learned counsel for the parties and perused the record of the case. 14. In assessing value for the purpose of compensation, the essential enquiry must be what is the property worth in the market, viewed not merely with reference to the uses to which it is at the time of application but also with reference to the uses it may be developed in future. In the case of Administrator General of W.B. v/s. Collector Varanasi, AIR 1988 2 SC 943, it has been held that even sale deeds subsequent to preliminary notification can be relied on if the prices be found to be stable during the period. It is contended by Shri S.D. Bohra, learned Government Advocate for the appellants – State that the reference Court having fixed the 6 market value on the method of evaluating compensation on the basis of Sq. fts. He submitted that when a large extend of 23,887 Sq.fts. land has been acquired under the provisions of Land Acquisition Act, the learned reference Court committed an error in assessing the compensation on Sq fts basis. 15. The decision cited by the learned Government Advocate in the case of Smt. Indumati Chitaley v/s. Government of India & Anr. AIR 1996 SC 531, large extent of agriculture land measuring about 17.57 acres of agriculture land was acquired whereas the compensation was determined on Sq. ft. basis and, therefore, the Apex Court has held that determination of compensation on Sq. ft. basis is per se illegal. 16. In Administrative General of W.B. v/s. Collector Varanasi (Supra) it was held as follows :- “12.......The principle requires that prices 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 not 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 layout could with justification be adopted, then in valuing such small, laid out 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, sewers, water and electricity lines, and the interest on the outlays for the period of deferment of the realisation of price; the profits on the venture, etc. are to be made.” 17. As per order dated 4.10.1997, it is clear that the land acquisition officer also assessed the value of the land on the Sq. ft basis. Here in the present case, a small piece of land i.e., 22837 7 Sq.ft (0.22 hectares) over which petrol pump of the respondent- landowner has been set up had been acquired for National Highway Authority of India Ltd. It is seen that the land is admittedly a commercial land, therefore, no one would prefer to purchase the small commercial land on acres. The principle of determining the compensation on Sq. fts basis is just and proper. The reference Court has not committed any legal error in determining the compensation on Sq.ft. basis. 18. In the case of Smt. Saraswati Devi and Ors. v/s. U.P. Government and Anr, AIR 1992 SC 1620, the Apex Court has held that market value shall be determined according to the use to which the land was put on the date of notification under Section 4 of the Act. 19. In the case of Atma Singh (dead) through Lr's and Ors. v/s. State of Haryana and Anr., 2008 (2) SCC 566. the Apex Court held that the fact that the exemplars filed by the appellants were of the small pieces of land could not be a ground; to discard them specially when exemplars of large pieces of land were not available. In the case in hand, the acquired land is situated at main Agra – Bombay road of village Lohar Pipliya just near to Dewas. Dewas is already diverted for commercial use. At the back side of petrol pump the land was diverted for residential purpose and in the year 1995 the registration of plot has been carried out at the rate of Rs.100/- Sq. ft. The land in question is of a commercial use and adjoining to the land in question number of commercial activities are going on. As on the date of acquisition, it was found that the vicinity surrounding the land was well developed and was of commercial use. The landowner was running his petrol pump. From the impugned award of the learned reference Judge, it appears that the land situated in the village Lohar Pipliya is better placed than the lands situated in adjoining villages. The appellant- 8 State Government failed to give any cogent evidence to support the fact that the value of the land was less than Rs.150/- per Sq. ft. The State has not filed any document from the office of the Sub – Registrar to show the exact value of the land of village Lohar Pipliya. No expert from the office of Sub – Registrar has been examined before the reference Court to prove the exact value of the land. As per statement of Sunil Gupta (PW1), PW2 and PW3, the value of the land at the time of acquisition must be around Rs.150/- Sq. ft because the back side of the land in question number of residential colonies are going on whereas the land in question is for commercial use and respondent land owner was running his petrol pump over the said area. No guide line (framed by the District Collector) or sale deed has been filed by the State to prove that value of the land was lower than the value assessed by the reference Court. The reference Court on the basis of statement of authorized valuer and on the basis of transaction which was made in respect of residential area, the reference Court assessed the approximate value of the land at the rate of Rs.150/- per Sq. ft. which is just and proper. The reason arrived by the reference Court for arriving at the market value of the land is based on oral and documentary evidence of the landowner. On going through the format and method of calculation as appearing from the relevant paragraph of the impugned judgment and order of the reference Court, we do not find any reason to interfere with the same as the calculation in respect of market value of the land and other charges is found to be just and proper. 20. Learned Senior counsel for the respondent failed to point out any legal ground to prove that value of the land was assessed on the lower side or as per the guidelines or sale deed of adjoining area the value of the acquired land was more than Rs.150/- per Sq. ft. No evidence to this effect was adduced by the landowner to 9 prove that the market value of the land was more than Rs.150/- per Sq. ft. In absence of any cogent evidence, we are of the view that no case for enhancement of compensation awarded by the reference Court is made out. 21. During the course of arguments, learned Government Advocate failed to point out any sale deed of the adjoining village or guidelines framed by the Collector in respect of market value of the land nor any oral evidence was adduced by the State to prove that land was not valuable or it has no commercial value. 22. From the aforesaid reasons, we are of the view that the compensation fixed and assessed towards the market value of the land and other charges for shifting the petrol pump and the view taken by the reference Court in the impugned judgment is based on settled legal position of law, as indicated in some of the cases noted above. 23. In that way of the matter, we do not find any reasonable ground to interfere with the decision of the reference Court. We, therefore, find no merit in these appeals which are dismissed, but we leave parties to bear their own cost. (P.K. JAISWAL, J) (Smt. S.R. WAGHMARE, J.) SS/-