1 R.F.A. No. 4438 of 2008 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH --- Regular First Appeal No. 4438 of 2008 (O&M) Date of Decision: 01-09-2009 ----- State of Haryana and another --- Appellants Versus Sailak Ram and others --- Respondents === CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL *** PRESENT: Mr. H.S. Hooda, Advocate General, Haryana assisted by Mr. Ashish Sharma, Deputy Advocate General, Haryana for the appellants. Mr. Shailendra Jain, Advocate for respondents Nos. 1 to 3. --- AJAY KUMAR MITTAL, J This order will dispose of a bunch of 123 Regular First Appeals bearing Nos. 4435 to 4445, 4453, 4499 to 4557, 4622, 4626, 5006 of 2008 and 21 of 2009 filed by the State of Haryana and 2 R.F.A. No. 4438 of 2008 bearing Nos. 2539 to 2542, 3516 to 3518, 3589, 3600, 3765, 3766, 3965 to 3970, 4018, 4045, 4046, 4074, 4075, 4603, 4653, 4654, 4863, 4939, 5300 to 5303, 5440 to 5443, 5555 to 5564, 5575 of 2008, 355 and 633 of 2009, as well as the Cross-objections, bearing No. 76/C.I of 2009 in R.F.A. No. 4502 of 2008 and 81/C.I of 2009 in RFA No. 4506 of 2008, filed by the landowners. In the year 1992, land of hundreds of land owners of village Mewla Maharajpur of district Faridabad was acquired by the Government of Haryana. According to record, this is a second spell of judicial exercise for determination of the amount of compensation. Earlier the matter after crossing all legal channels had reached the apex Court. The case was, however, reverted back by the Hon’ble Supreme Court to the Reference Court, vide order dated 27.10.2004 passed in Civil Appeal No. 9808 of 2003 for re-determination of the market value of the acquired land. With this little backdrop, some facts of the case are noticed here. The Government of Haryana acquired land measuring 486.61 acres situated within the revenue estate of village Mewla Maharajpur, Tehsil and District Faridabad, for a public purpose, namely, development and utilization of land as residential, commercial and institutional area of Sectors 44 and 47, Faridabad, falling within the Faridabad-Ballabgarh Controlled Area. This exercise was undertaken by means of notifications issued under 3 R.F.A. No. 4438 of 2008 Sections 4 and 6 of the Land Acquisition Act, 1894 (for short “the Act”), dated 7.9.1992 and 2.7.1993, respectively. The Land Acquisition Collector, vide award dated 8.2.1995, assessed compensation in respect of the acquired land payable to the landowners, at the rate of Rs. 1,96,800/- per acre, i.e., Rs. 40.66 per square yard. The landowners did not feel satisfied with this rate of compensation and, thus, sought reference under Section 18 of the Act for enhancement of the amount of compensation, alleging that the Land Acquisition Collector had not assessed the amount of compensation in consonance with the true market value of the land prevailing at the relevant time, which according to the landowners, was not less than Rs. 1,000/- per square yard. The plea for enhancement of amount of compensation was stoutly opposed by the State of Haryana. It was strongly contended that the Land Acquisition Collector had awarded just and reasonable compensation, strictly on the basis of the market value of the acquired land prevalent at the relevant time. The sole question which fell for consideration before the Reference Court was: “What was the market value of the land in question at the time of notification under Section 4 of the Act?” The Reference Court, while dealing with the references sought by various landowners, vide award dated 12.1.1998, determined the market value of the acquired land, at the rate of Rs. 325/- per square yard. None of the sides felt satisfied with the amount 4 R.F.A. No. 4438 of 2008 of compensation determined by the Reference Court. The landowners, thus, preferred appeals for further enhancement of the amount of compensation, whereas the State of Haryana also preferred appeals pleading for reduction in the amount of compensation. The appeals preferred by both the sides were dealt with by this Court, and it is here that the landowners suffered a big setback when their plea for further enhancement of the amount of compensation in respect of their acquired land was rejected. The appeals of the land-owners were dismissed whereas those preferred by the State of Haryana accepted and consequently, the amount of compensation as awarded by the Reference Court, i.e. at the rate of Rs. 325/- per square yard, was reduced to Rs. 90/- per square yard, vide judgment dated 7.7.1999. The landowners thereafter preferred Letters Patent Appeals. The judgment, dated 7.7.1999 passed by the learned Single Judge in the Regular First Appeals by both sides, was maintained by the Letters Patent Bench. The landowners still did not leave hope and carried the matter to the Apex Court. As noticed above, the Apex Court after hearing the parties remanded the matter to the Reference Court to give a fresh look to the matter and re-determine the market value of the land. The Reference Court accordingly re-considered the matter and determined the market value of the land at the rate of Rs. 238/- per square yard, vide award dated 12.1.2008. This is the award after 5 R.F.A. No. 4438 of 2008 the remand passed by the Reference Court which is now the focal point for consideration in the instant appeals, preferred by the landowners and the State of Haryana. I have heard learned counsel appearing for the parties and have gone through the record with their assistance. Shri Hawa Singh Hooda, learned Advocate General, Haryana at the outset submitted that determination of market value of the acquired land depends on various factors, like nature and quality of land, its location and closeness from the road/highway and also the development in and around the area of the land under acquisition. He further submitted that the amount of compensation awarded by the Reference Court has been fixed on extremely higher side; the same calls for reduction and in any case, the compensation as assessed by the Land Acquisition Officer deserves to be maintained. The submission of the learned Advocate General, in other words is that the appeals preferred by the land-owners may, therefore, be dismissed and the award of the Reference Court modified accordingly. Elaborating his submission, Mr. Hooda submitted that the Reference Court had granted increase of 5% per year for four years, after having relied upon the judgment dated 17.7.1991, Exhibit P-26. According to the learned Advocate General, reliance on the said judgment, (Exhibit P-26) placed by the Reference Court, was not justified when Exhibits R-31 and R-32, produced by the State of Haryana were available on record; and more so when the same related to the land of the same village, which had been acquired for 6 R.F.A. No. 4438 of 2008 development of Sectors 45 and 21-C, Faridabad, respectively. Learned Advocate General submitted that in case the Court comes to the conclusion that Exhibit P-26 is the best piece of evidence, then in view of annual increase granted by the apex Court in Revenue Divisional Officer-cum-Land Acquisition Officer Versus Shaik Azam Saheb and others (2009) 4 SCC 395, the increase of 7.5% minus 20% reduction therein per year, as granted by the Supreme Court in the aforesaid judgment, could be given on the rate of Rs. 200/- per square yard and then the compensation can be finally settled. Mr. Shailendra Jain, learned counsel appearing for the respondents in connected appeals, on the other hand, vehemently submitted that there are judgments relating to the area of some villages which are in close proximity to the village Mewla Maharajpur, from where also, the land had been acquired, for development of different Sectors, and on the basis of the same, the market value of the land acquired in the present case deserves to be determined at the rate ranging from Rs.300/- to 350/- per square yard. Learned counsel referred to the judgment passed by the Letters Patent Bench, in LPA 920 of 1994 (Horam Versus Haryana State) decided on 27.7.2005, in respect of the acquisition of land made by the State of Haryana, for development and utilization of land as residential, commercial and institutional area of Sectors 46, Part-II, Faridabad. The land was acquired vide notification issued on 22.8.1988 under Section 4 of the Act. The Letters Patent Bench had determined the 7 R.F.A. No. 4438 of 2008 market value of the acquired land at the rate of Rs.200/- per square yard. The counsel further submitted that the Special Leave Petitions filed in the Supreme Court by the State and the landowners against the aforesaid decision were dismissed vide judgment dated 4.7.2006. The counsel also submitted that as per the site plan, Exhibit P-1, Sectors 44, 45, 46 and 47 of Faridabad are in one and the same area and adjacent to each other. Thus, on that basis also, after giving reasonable increase, the market value of the acquired land should be determined. The counsel further stated that 5% increase each year for four years allowed by the Reference Court by placing reliance on Exhibit P-26 cannot be said to be the correct value of the acquired land and the same deserves to be enhanced by this Court. Mr. Adarsh Jain, learned counsel appearing for some of the landowners in the connected appeals submitted that in L.P.A. No. 1367 of 2001, (Suresh Chand Garg v. State of Haryana and others) this Court vide judgment dated 10.8.2005, in respect of the land of village Fatehpur Chandel, district Faridabad, acquired in the year 1990, held the landowners entitled to compensation at the rate of Rs. 250/- per square yard. According to the learned counsel, this Court, in LPA No. 1367 of 2001, in respect of land acquired for Sector 21-D, Faridabad, had determined the market value of the said land at the rate of Rs. 250/- per square yard, by placing reliance on the decision in LPA 920 of 1994. The notification under Section 4 of the Act was issued on 11.5.1990 in that case. Thus, according to the learned counsel, the 8 R.F.A. No. 4438 of 2008 Reference Court had given 14.25% increase in the market value, assessed by this Court in LPA 920 of 1994 for the acquisition made during the year 1990. Applying the same increase, since the notification in the present case was issued in the year 1992, the market value of the acquired land would come to Rs. 335/- per square yard. Apparently, in this second round of judicial exercise, the land-owners are fighting tooth and nail to get maximum amount of compensation. If the plea of the land-owners is to be spelled out in other words, it would in clear terms be that the amount of compensation determined by the Reference Court is inadequate and not based on proper appreciation of the evidence. The landowners’ submission is that the acquired land being situated at a prime location is of a great potential value, but the Reference Court has not attached much weightage to this aspect. The further plea of the land-owners is that the market value of the acquired land has not been determined as per the rates prevalent at the time of the acquisition in the area in question. On the other hand, the sole submission made on behalf of the State Government is that the amount of compensation deserves to be reduced. Section 23 provides for matters to be considered by the court in determining the just and adequate compensation to be awarded for the land acquired under the Act. According to it, the prevailing market value of the land as on the date of notification published under Section 4(1) of the Act is payable to the landowner 9 R.F.A. No. 4438 of 2008 whose land has been acquired by the State. The factors to be taken into consideration while assessing the value of the acquired land, clauses 1 to 6 stipulated in the Section can be taken into consideration. The claimants’ position is like that of plaintiffs and burden is cast upon them to establish by adducing cogent and convincing evidence that the acquired land can fetch higher market value than what is determined by the Land Acquisition Collector, which is only an offer from the State but not conclusive. The object of reference under Section 18 of the Act is to bring on record the sale instances which the acquired land was capable of fetching in the open market as on the date of notification under Section 4(1) of the Act. It is well settled that the best evidence in this respect would be the sale transaction relating to acquired land, the time at which and purpose of sale of property, the nature of the consideration and the manner in which the transaction came to be effected. The claimant is required to produce documents evidencing comparable sale transaction of similar and similarly situated lands on the date of publication of notification under Section 4(1) of the Act. It is the attending facts and circumstances that would furnish guidance to arrive at the market value of the acquired land and it is equally relevant to consider the potentiality of the acquired land or any advantageous features or any special circumstances available in each case. Ordinarily, guesswork is to be kept at bay while assessing the market value of the acquired land, the feats of imagination should be avoided and assessment of evidence in 10 R.F.A. No. 4438 of 2008 mechanical manner eschewed but at the same time bona fide and genuine sale transactions are guiding factors in evaluating the evidence. The fair, reasonable and adequate market value of the acquired land is always a factual question depending upon the evidence adduced, circumstantial evidence and probabilities arising in each case. However, a situation may arise where there may not be guiding sale instances in the form that no transaction had taken place in or about the acquired land for a long period on or about or prior to issuance of notification under Section 4(1) of the Act. In such an eventuality reliance upon some guess work is inevitable. The Court in such circumstances has to balance the equities inasmuch as it has to ensure that the landowners are paid adequate compensation for their acquired land as they have been deprived of their property but at the same time, unnecessary and very heavy burden should not be put on the public exchequer in the form of compensation by misplacing reliance on sympathies or undue emphasis on the claimants’ right to compensation. Before concentrating on the quantum of compensation in respect of the acquired land involved in the instant appeals, it would be appropriate to first evaluate the evidence adduced before the Reference Court by both the sides. Exhibit P-1 is the Master Plan showing the location of different Sectors and roads of the Faridabad Township. Exhibits P-2 to P-23, are the allotment letters vide which the Haryana State 11 R.F.A. No. 4438 of 2008 Industrial Development Corporation had allotted plots to certain persons. These documents though stood proved on record but are of no help for the purpose of determining market value of the land as the rates quoted therein are of the lands which were put to auction during the months of August and September, 1996 whereas the land under reference had been acquired on 7.9.1992. Exhibit P-6/A is a letter of allotment issued by the Haryana Urban Development Authority on 1.3.1995. No reliance can be placed on this as the same related to public auction and was post-notification as it was issued after a gap of three years. Exhibit P-24 is the list indicating the rates of land located in Udyog Vihar, Gurgaon. This document is not applicable for assessment of the compensation of the land situated in Faridabad. Similarly, the document, Exhibit P-25, contained the details of auction of the land held on 10.8.1996 of an industrial shed in Sector 31, Faridabad and is an instance not worthy of consideration being related to much later period than that of the present acquisition. Exhibit P-26 is the judgment dated 17.7.1991 whereby the compensation had been awarded at the rate of Rs. 198.25 paise per square yard, in respect of the land situated in village Mewla Maharajpur, acquired vide notification under Section 4 of the Act, dated 22.8.1988, for purpose of development of Sector 21-C, Faridabad. This instance is relevant as the land in the present case is in the same village and had been acquired for development of the adjoining sector. Exhibit P-27 is also a judgment rendered on 22.10.1991 whereby compensation had been awarded at the rate of 12 R.F.A. No. 4438 of 2008 Rs. 300/- per square yard in respect of the land of the same village acquired vide notification dated 30.7.1987, for development of adjoining Sector 46, Faridabad. Exhibit P-28 is the brochure issued by the Haryana Urban Development Authority, in November 1993, offering residential plots in Sector 21-D, Faridabad and this document shall not be of any relevancy being the instance pertaining to the year 1993. Exhibit P-29 is the judgment dated 7.8.1997 rendered by a Reference Court whereby for the land situated in village Ajronda acquired vide notification dated 5.6.1992, for development of Sector 20-B, Faridabad, compensation was awarded at the rate of Rs. 392.50 per square yard. According to the Master Plan (Exhibit P-1), there is gap of two sectors, namely, Sectors 21-C and 20-A between the acquired land and Sector 20-B. Exhibit P-30 is a judgment dated 27.10.1997 whereby in respect of the land of village Ajronda acquired for developing a green belt on the western side of Delhi-Mathura Road, compensation had been awarded at the rate of Rs. 435/- per square yard. Both Exhibits P-29 and P-30 being of different village are not relevant for assessing market value of the acquired land. Exhibit P-31 cannot form the basis for valuing acquired land the same being merely a recommendation of the Government made on 21.10.1994 for allotment of certain land for development of Film Studio Complex and Training Institute at Faridabad. In any case, the said document is not a safe evidence for being acted upon in the matter of determination of the market value of the acquired land. 13 R.F.A. No. 4438 of 2008 Exhibit P-33, once again is a copy of the judgment of this Court whereby compensation in respect of the land situated in village Mewla Maharajpur acquired vide notification dated 30.7.1987, for constructing a link road from Delhi-Mathura Road to Sector 46, Faridabad, was awarded at the rate of Rs. 337.20 per square yard. Exhibit P-34 is yet another judgment vide which the compensation had been awarded at the rate of Rs. 435/- per square yard in respect of the land acquired on 7.4.1986 for development of green belt on Delhi-Mathura Road opposite the City Centre, Sector 12, Faridabad. The land being at a distance from the acquired land could not form part of comparable sale instances. Not only this, after the remand by the Supreme Court, the claimants examined Mahesh Aggarwal as PW-10, an attesting witness of Exhibit PA, which sale deed was already on record. Further the landowners had tendered certified copy of order dated 14.9.2007, Exhibit P-35 relating to execution of allotment of land subject matter of document tendered as Exhibit P-31, in rebuttal. Exhibit PA related to a post-dated epoch which was bought by a Company for commercial purpose and was different location wise also. The document, Exhibits P-31 and P-35 when read together, clearly depict that the land therein was located in a special zone and was for commercial utilization. No reliance can be placed on these instances. As far as the evidence produced on behalf of the State of Haryana is concerned, the same also consisted of various documents as well as the oral evidence. The State of Haryana produced on 14 R.F.A. No. 4438 of 2008 record a chart, Exhibit R-1, containing detail of various sale deeds executed between the period 24.10.1989 and 3.5.1995 depicting the market value of the land to be Rs. 40.60 per square yard having been determined after taking the average of the price mentioned in those transactions. Exhibits R-2 to R-30, are copies of sale deeds tendered in evidence by the State of Haryana. Exhibit R-31 is the judgment of the Reference Court whereby in respect of acquisition made on 2.8.1989 the compensation was awarded at the rate of Rs. 45/- per square yard. Similarly, Exhibit R-32 is a judgment of the Reference Court whereby in respect of the land of village Mewla Maharajpur, acquired on 22.8.1988, compensation had been awarded at the rate of Rs. 45/- per square yard. The State of Haryana, after the remand by the apex Court, examined RW-1, Dharampal, purchaser of land vide sale deed, Exhibit R-12, which was already on record. The State did not examine the vendor, vendee or the attesting witness of Exhibits R-2 to R-11 and Exhibits R-13 to R-30 and, therefore, these cannot be the guiding instances for valuation of the acquired land. Similarly, Exhibit R-12 related to the sale of land measuring 28 Kanals and 17 Marlas in village Mewla Maharajpur for Rs. 36,000/- on 18.4.1991. This transaction is also liable to be ignored because it is well settled that the sale instance of a small area cannot be applied for the assessment of price of comparatively a larger area and the rate of land on calculation comes to Rs. 2/- per square yard which is not even near to and is rather a fraction of the average rate of Rs. 40.60 per square yard quoted in chart Exhibit R- 15 R.F.A. No. 4438 of 2008 1. Exhibits R-31 and R-32 also could not be taken as basis for determining the market value as they related to Gair Mumkin Pahar and that classification of land pales into insignificance because acquisitions of the lands in adjoining area were already made for residential and commercial use and, therefore, the acquired land had attained market potentiality for similar use and the compensation, thus, needs to be assessed on the basis of over-all trend of prices reflected by other comparable sale instances. On the basis of analysis of the evidence produced by the parties on record, it is concluded that the instances Exhibits P-26, P- 27 and P-33 would attract the attention of the court for assessing the just and fair compensation by determining the market value of the acquired land on the date of notification under Section 4 of the Act. A perusal of the site plan, Exhibit P-1 shows that Sectors 44, 45, 46 and 47 are carved out from the same village, i.e. Mewla Maharajpur and the same are adjacent to each other. The sites covered under the above notification are located between Badkhal and the National Highway. So far as the land acquired for development of Sectors 21-C is concerned, the same is situated near the Badkhal Lake and is adjacent to the acquired land whereas land acquired for Sectors 45 and 46 are abutting the National Highway at Delhi-Mathura Road. The land which has now been acquired for development of Sectors 44 and 47 being located towards Badkhal Lake, the market value shall be determined keeping in view the rates 16 R.F.A. No. 4438 of 2008 which had been determined in respect of land acquired for Sector 21-C as the same would be comparable location-wise. Exhibits P-27 and P-33 would depict that the land was acquired for development of Sector 46, which also abuts on Delhi- Mathura Road and is not similar location-wise to the suit land because Sectors 44 and 47 for which the suit land had been acquired are at some distance from the said road. Thus, Exhibits P-27 and P- 33 also lose credence as sale instances for determining the market value of the acquired land. It would, therefore, be safe to place reliance upon Exhibit P-26 only vide which the market value of the