Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 75 of 2008. Indian Oil Corporation having its registered office at Indian Oil Bhawan, G-9 Ali Yavar Jung Marg, Bandra East, Mumbai through Sh. R.K.Sinha, Sr. Divisional Retail Sales manager, U.P.State Office-II, E- 8, Sector-1, NOIDA-201301. Vs. … Appellant. 1. Shri Harish Chandra S/O Late Shri Sukhram, 2. Km. Poonam D/O Shri Harish Chandra, 3. Km. Sangeeta D/O Shri Harish Chandra, All R/O Village Majri Mafi, District Dehradun (Uttarakhand) 4. State of Uttarakhand through Collector, Dehradun. …Respondents. Mr. V.K.Kohli, Senior Advocate, with Mr. I.P.Kohli, Advocate, learned counsel for the appellant. Mr. Ashok Aggarwal, Advocate, learned counsel for the claimants- respondents no.1-3. Mr. K.P.Upadhyay, learned Additional C.S.C. for the State-respondent no.4. WITH First Appeal No. 103 of 2009. 1. Sri Harish Chandra S/O Late Sri Sukhram, 2. Km. Poona D/O Sri Harish Chandra, 3. Km. Sangeeta, D/O Sri Harish Chandra, All R/O Village Mazari Mafi, District-Dehradun. Vs. … Appellants. 1. State of Uttarakhand service through, Secretary Revenue, Govt. of Uttarakhand Dehradun. 2. Collector/S.L.A.O. Dehradun. 3. Indian Oil Corporation, having its registered Office at Indian oil Bhawan, G-9 Ali, Yavr Jang Marg, Badra East, Mumbai. …Respondents. Mr. Ashok Aggarwal, Advocate, learned counsel for the appellants-claimants. Mr. K.P.Upadhyay, learned Additional C.S.C. for the State-respondent nos. 1 &2. Mr. V.K.Kohli, Senior Advocate, with Mr. I.P.Kohli, Advocate, learned counsel for the respondent no.3. Date May 03, 2010. Hon’ble B.S.Verma, J. Since both the appeals have arisen out of the judgment and decree dated 4-10-2008 passed by the District Judge, Dehradun in 2 Land Acquisition Reference No. 185 of 2005, Harish Chandra and others Vs. Collector Dehradun and another, therefore, for the sake of convenience, both the appeals are being decided by this common order. 2. Both the appeals under Section 54 of the Land Acquisition Act (for short the Act) are directed against the judgment and decree dated 4-10-2008 passed by the District Judge, Dehradun, in Land Acquisition Reference No 185 of 2005, Harish Chandra and others Vs. Collector Dehradun and another, whereby the learned Reference Court has awarded compensation of land under acquisition @ Rs. 3,000/- per sq.mt. and also awarded compensation towards cost of construction made thereon to the tune of Rs. 63,000/- and other amounts as detailed in the impugned order. 3. Land measuring 0.194 Hectare of village Majri Mafi, Pargana Parwadoon, Tehsil and District Dehradun was proposed to be acquired by the Marketing Division Bareilly of Indian Oil Corporation Limited for installation of petrol pump. Notification under Section 4(1) of the Act was published in the official Gazette on 8-1-2004 followed by notification under Section 6(1) of the Act, which was published on 18-5-2004. Publication was also made in two Hindu newspapers regarding notifications to that effect. Consequently, land of Khasra No. 78Ka, area 0.010 Hectare, Khasra No. 78Kha area 0.080 Hectare and Khasra No. 81, area 0.064 Hectare (total 0.154 Hectare) belonging to claimant Harish Chandra, land measuring 0.20 Hectare of plot No. 78 Ka belong to Km. Poonam and land measuring 0.20 Hectare of plot No. 78Ka belonging to claimant Km. Sangeeta was acquired and possession thereof was taken on 6-12-2004. After completing other formalities, the Special Land Acquisition Officer (for short SLAO) passed Award on 15-3-2005 thereby compensation @ Rs. 54,99,862.50 per Hectare was awarded to the claimants with all other statutory benefits including 30% solatium, 12% additional amount and interest under Section 28 of the Act. 3 4. The claimants were not satisfied by the award made by the SLAO hence a reference under Section 18 of the Act was made by the Collector, Dehradun for adjudication of market value of the compensation. The reference was registered as L.A.Case No. 185 of 2005, Harish Chandra and others Vs. Collector Dehradun and another before the reference Court. The reference has been made mainly on the ground that the compensation awarded by the SLAO is inadequate, while the claimants have claimed that they are entitled to compensation @ 4000/- per sq.mt. It was also asserted that the land under acquisition is having residential potentiality and the land is situated on Dehradun-Haridwar national highway and a constructed house of the petitioners was standing on the land under acquisition. 5. In their objection, it has been asserted that the exemplar sale-deeds which were considered by the SLAO for determination of compensation cannot be the basis because the land under acquisition is not similarly situated and has not similar potentiality as that of the land under the exemplar sale deeds. It has also been asserted that the SLAO was bound to award compensation for the land under acquisition on the basis of highest exemplar executed within one year prior to the date of notification under Section 4. It has also been stated that the land under acquisition is situate in densely populated area and amidst market having high potentiality. The SLAO has not considered the circle rate fixed by the Collector for the period 1-11-2003 to 31-10- 2005. It has also been asserted that the SLAO was not justified in ignoring the sale deed executed by Sri Vinay Kumar on 19-6-2003 in respect of 226.3 sq.mt. land of plot no. 48 by which land was sold @ Rs. 35,76,544/- per acre in favour of Vinod Khanna son of Sant Ram and other sale deeds as mentioned in the objection. The SLAO should have awarded the compensation at fair market price of the land under acquisition. 6. The reference was resisted by the Collector Dehradun as well as Indian Oil Corporation, who filed their separate written statements. Both the parties denied the allegations levelled in the 4 objections and stated that the compensation of land under acquisition was awarded as per the prevailing rate of land in the area on the date of acquisition. They have disputed that the land was having residential potentiality, rather the land was bearing agricultural potentiality. The SLAO has rightly chosen the exemplar for fixing the amount of compensation. The compensation awarded by the SLAO is adequate, just and fair. The claim for compensation @ Rs. 4,000/0- per sq. mt is not at all justified. Indian Oil Corporation has asserted in its affidavit that the land under acquisition was acquired in public interest for allotting petrol pump to the dependents of martyrs of Kargil War and that the rate of compensation awarded by the SLAO is fair and proper. It was also asserted that the Indian Oil Corporation was not a necessary party to the reference. 7. On the pleadings of the parties, the following issues were framed by the learned Reference Court. ISSUES 1. Whether the compensation awarded to the petitioners is inadequate? 2. Whether the claimants are entitled to compensation at enhanced rate? If so, to what extent? 3. Whether the opposite party no. 2 is not necessary party for the decision of the case and whether it has been impleaded unnecessarily? 8. Both the parties led evidence before the reference court. On behalf of the claimants, Sri Harish Chandra filed his affidavit. He was put to cross-examination from the other side. Petitioners also adduced documentary evidence. From the side of the opposite parties- Collector, D.W.1 Vinod Kumar Verma, Land Acquisition Amin in the office of the Collector has been examined. No documentary evidence was led by the opposite parties. 9. The learned reference court after hearing the parties and on perusal of the evidence on record has come to the conclusion that 5 the acquiring body, i.e. Indian Oil Corporation is a necessary party and it has been rightly impleaded to the proceeding. The learned reference Court took Issue Nos. 1 and 2 together. The reference court after considering all the factors came to the conclusion that the circle rate fixed by the Collector in respect of the land situate on Dehradun- Haridwar motor road on the national high way between Rispna bridge and Harrawala, i.e. @ 4,000/- per sq.mt. would be fair market value of the land and out of this amount deduction @ 25% was allowed, thereby the compensation was awarded @ Rs.3,000/- per sq.mt. for the land under acquisition. Accordingly, the judgment and decree dated 4-10-2008 has been passed by the learned reference Court. 10. Dissatisfied by the said judgment and decree, the appellant-Indian Oil Corporation has filed First Appeal No. 75 of 2008. The main ground of challenge to the judgment and award dated 4-10-2008 is that the market price of the land has been rightly assessed by the SLAO and no finding has been recorded to discard the finding of the SLAO and that the reference court has not considered the provision of the Act. 11. The claimants Harish Chandra and two others, whose land had been acquired for establishment of petrol pump, have also filed separate appeal bearing First Appeal No. 103 of 2009,for enhancement of compensation, mainly on the ground that the compensation has not been awarded by the SLAO as well as the District Judge on fair market value of the land under acquisition and that the learned reference court has ignored the fact that the land under acquisition is situate akin to the Dehradun Haridwar Highway. 12. I have heard learned counsel for the parties and perused the material available on record. 13. Learned counsel for the appellant in First Appeal No. 75 of 2008 has contended that the land under acquisition is recorded as agricultural land and the learned reference Court has considered the 6 rate fixed by the Collector for the purposes of stamp duty for residential purposes. The area of the land in question is 1940 Sq.Mt.. Circle rate has been fixed by the Collector for residential purpose @ Rs. 4,000/- per sq.mt. for the area upto 50 Mts. from the road. 14. Learned counsel for the appellant further submitted that as per decision of the Hon’ble Apex Court, circle rate cannot be equated with the market rates and on the basis of circle rates, compensation cannot be granted. The reference court has wrongly held that the land in question is having residential potentiality and normally deduction towards development charges would be 33% but the reference Court has deducted only 25% on that score. 15. It has also been submitted that the Collector while fixing the valuation of the land under acquisition has selected the sale deeds on the basis of transfers made during the last preceding three years from the date of notification under Section 4 of the Act, but the reference Court has ignored this fact and wrongly awarded compensation on the basis the circle rates fixed by the Collector. Learned counsel further contended that the learned reference court has misinterpreted the decision of the Apex Court in the case of U.P. State Industrial Development Corporation Ltd. Vs. Rishabh Ispat Ltd. reported in 2007(1) Uttaranchal Cases, Page 577. 16. The learned counsel in support of his contentions has placed reliance upon the following case-law:- 1. Krishi Utpadan Mandi Samiti Sahaswan, District Badaun Vs. Bipin Kumar and another [(2004) 2 Supreme Court Cases 283 (para 7)]. 2. Jawajee Nagnatham Vs. Revenue Divisional Officer, Adilabad A.P. and others [(1994) 4 S.C.C., Page 595 (para 5)] 3. Viluben Jhalejar Contractor (Dead) By LRS. Vs. State of Gujarat [(2005) 4 S.C.C., Page 789] 7 4. Basavva (SMT) and others Vs. SPL. Land Acquisition Officer and others [(1996) 9 S.C.C. Page 640] 5. Periyar and Pareekanni Rubbers Ltd. Vs. State of Kerala [(1991) 4 S.C.C. 195] 6. Decision of the Apex Court in the Civil Appeal No. 8636 of 2002 Thakur Kuldeep Singh Vs. Union of India and others decided on 8-3-2010. 17. Before entering further discussion in the matter, it is pertinent to mention here that in the case at hand, the claimants Harish Chandra and others have categorically stated in paragraph 8 of their objection that the land in the proximity of the land under acquisition was sold on 19-6-2003 by Vinay Kumar son of Pritam Singh of plot no. 48, measuring 226.3 sq.mt. at the rate of Rs. 35,76,544/- per acre. The claimants have also stated that Prabhu Dayal sold land measuring 301 Sq.Mt. for a consideration of Rs. 5,16,810/- at the rate of Rs. 69,53,755-81 and that Arjun sold land measuring 52.34 sq.mt. for Rs. 73,859/- to Smt. Nisha Devi on 10-9-2003 at the rate of Rs. 57,15,111.76 per acre. On the other hand, the Special Land Acquisition Officer Dehradun in his written statement paper no. 5B/2 has simply denied that the averment made in paragraph 8 of the objection to be false. The SLAO could not dare controvert that the sales referred to by the claimants for determination of fair market value of the land under acquisition are false or that the land under the sales referred to by the claimants is not in proximity or not having the similar potential value as that of the land under acquisition. 18. Besides, the claimant Harish Chandra filed his affidavit before the District Judge Dehradun in the reference and in paragraph no. 10, he has specifically stated that in Majri Mafi on Haridwar Road, near the land under acquisition, land having similar potential measuring 14.5 Sq.Mt. and measuring 15.39 sq.mt. was sold by Smt. Krishna to Smt. Meera Singh on 28-1-2004 at the rate of Rs. 4,000/- sq.mt. Deponent Harish Chandra was cross-examined on behalf of the appellant Indian Oil Corporation. The deponent has denied the 8 suggestion that the land under the sale deed (paper no. 20C) is at a distance from the land under acquisition. The deponent Harish Chandra has however admitted that the land under the sale deed was having shop and vacant land both. Moreover, the claimant deponent was also cross-examined by the D.G.C. (Civil) on behalf of the Collector Dehradun but the statement of Harish Chandra made in paragraph 10 of his affidavit remained uncontroverted in the cross- examination wherein the claimants have stated that they be paid compensation of the land under acquisition @ Rs. 4,000/- per sq.mt. But the appellant Indian Oil Corporation in its written statement has not even disputed that the claimants are not entitled to compensation at the rate of Rs. 4,000/- per sq.mt. 19. It is further important to mention here that from the side of the appellant no oral or documentary evidence was led before the reference court to substantiate its stand that the market value of the land fixed by the SLAO is fair and adequate. Moreover, before the reference Court, DW 1 Vinod Kumar Verma, Land Acquisition Amin was examined. In his examination in chief this witness has stated that the land under acquisition is situate on Haridwar road and prior to its acquisition, sugarcane was grown and there were two kuchcha huts. There was no commercial area in the proximity of the land. He also stated that the compensation awarded by the Collector is adequate. In his cross-examination he has admitted that there is abadi on both the sides of the land under acquisition. He has also admitted that in the vicinity of the land there are some shops and other facilities including transport are available. It is thus obvious that neither the appellant Indian Oil Corporation nor the Collector Dehradun has adduced any oral evidence to substantiate that the compensation assessed for the land under acquisition is based on the fair market value prevailing within a period of three years preceding the date of notification under Section 4 of the Act. Judicial notice of the fact can be taken that none has come forward from the side of the Collector to state on oath that the exemplars relied on by the SLAO were depicting the fair market value of the land under acquisition. 9 20. So far as the pleadings and the evidence led by the parties before the reference court is concerned, the appellant Indian Oil Corporation has not even pleaded before the reference court that the claimants are not entitled to the amount of compensation as claimed by them. 21. Now, it has to be seen whether the compensation awarded by the reference court is based on the fair market value of the land under acquisition as envisaged by Section 23 of the Act or not? From a perusal of the record, it is obvious that the reference Court has framed Issue no. 1 on the adequacy of the compensation. Before the reference court, the parties have filed their pleadings, which have already been referred to above. In oral evidence, the claimants have filed the affidavit of claimant Harish Chandra and have claimed that the compensation be awarded at the circle rate fixed by the Collector. It has also been pleaded that the land under acquisition possessed high potential value, it’s closeness to Abadi having facilities and amenities of water, electricity, telephone and transport. From a complete reading of the impugned judgment passed by the reference Court, it is crystal clear that the reference court has taken into consideration all the factors for determining the market value of the land in question. It is not disputed that the circle rate of the land under acquisition is Rs. 4000/- per sq.mt. Taking into considering all the relevant factors and evidence led by the parties, the reference court was of the view that the compensation ought to have been awarded by the SLAO at the circle rate fixed by the Collector, following the ratio of Division Bench Judgment of this Court in the case of Bhopendra Singh and others V. Awas Vikas Parishad and others [2005(2) Uttaranchal Decisions, Page 295]. 22. In paragraph no. 1 at page 9, of the impugned judgment dated 4-10-2008, the following observations were made by the reference court:- 10 “Now averting to the facts of the present case it is clear that as per the guidelines laid down by the Hon’ble Apex Court in AIR 1988 SC 1652 (Supra) the acquired land has the following plus factor:- 1. It situate in Abadi. 2. It has substantial frontage on Dehradun-Hardwar National High Way. 3. The acquired land had the commercial potentiality. As per the assertion made in the last para of the award, the land in question was selected for acquisition by the acquiring body Indian Oil Corporation when it was found suitable for establishing a petrol pump thereon. The land was so selected on account of its location and potentiality to use the said land for commercial purposes. 4. It was surrounded by a boundary wall with a hut and water tank constructed thereon for which a compensation of Rs. 63,000/- was awarded.” 23. It would not be out of place to mention here that in Civil Appeal No. 8636 of 2002, Thakur Kuldeep Singh (D) Through L.R. & Others. Vs. Union of India & Ors. along with Civil Appeal No. 8637 of 2002, decided on 8-3-2010, which has been relied upon by the appellant Indian Oil Corporation itself, the Apex Court has observed in paragraph no. 13 as under:- “13) We accept that in view of the purpose for which the ‘circle rates’ have been notified by the Ministry of Urban Affairs and Employment, market value of a plot cannot be determined solely on the basis of the circle rates. On the other hand, it cannot be ignored in toto. If other materials are available, Government rates can also be considered as corroborative evidence. The nature of the land plays an important role. Likewise, market conditions prevailing as on the date of notification are also relevant. Sale price in respect of small piece of 11 land cannot be the basis for determination of market value of large stretch of land.” 24. Considering the fact that the land under acquisition was acquired for commercial purpose of installation of petrol pump coupled with the fact that there were facilities of road, water, electricity, telephone as well as transport etc. and the fact that the land under acquisition is situate near Abadi and on the Dehradun-Haridwar National Highway, I am of the view that the market value of the land in question could easily fetch an amount of Rs. 4000/- per sq.mt. on the date of notification under Section 4(1) of the Act. Notice under Section 4(1) of the Act was issued on 8-1-2004, while the prevalent circle rates were effective from 1-11-2003 in the area. That being so, the award of compensation by the reference Court on the basis of circle rate i.e. @ Rs. 4,000/- per sq. mt. cannot be discarded. Not only this, the learned reference Court has made a deduction of 25% towards development charges, thereby the actual market rate of land under acquisition comes to Rs. 3,000/- to be payable to the claimants. 25. In paragraph 7 of the case Krishi Utpadan Mandi Samiti Sahaswan (supra), the Apex Court has made a reference of the case Jawajee Nagnatham (supra) and has held as under:- “It has been held by this Court in the case of Jawajee Nagnatham v. Revenue Divisional Officer that market value under Section 23 of the Land Acquisition Act, 1894 cannot be fixed on the basis of a basic valuation register maintained by the registering authority for collection of stamp duty. Therefore, the reliance by the Reference Court on the values of land fixed by the District Magistrate for stamp duty purposes is clearly erroneous. For the purposes of the Land Acquisition Act the market value must be determined on the basis of sale deeds of comparable lands. In this case the Land Acquisition Officer had taken note of one such sale deed where the price was Rs. 15.37 per sq.yard. The Reference Court also had before it the sale deed by which the respondent purchased a portion of the acquired 12 land. As stated above, the sale deed was for Rs. 15.40 per sq. yard. Section 92 of the Evidence Act precludes a party from leading evidence contrary to the terms of a written document. It was, therefore, not open to the respondent to urge that, even though his sale deed showed a price of Rs. 15.40 per sq.yard the real market value was Rs. 120 per sq. yard. To permit a party to so urge would be to give a premium to dishonesty. Parties who undervalue their documents, for purposes of payment of stamp duty, cannot be allowed to then claim that their own documents do not reflect the correct market value. Therefore, as per sale instances of the comparable lands, the market value, on dates of sales, were in the region of Rs. 15.37 to Rs. 15.40 per sq. yard.” 26. The ratio of the judgment cannot be disputed. In the case before the Apex Court in Krishi Utpadan Mandi Samiti (supra), the claimant-respondent filed his own sale deed in evidence by which land at the rate of Rs. 15.40 per sq. yard was purchased. The Apex Court held that it was not open for the respondent to lead evidence contrary to the terms of a written document. 27. In the case at hand, the claimants have placed reliance on the sale deeds made at the proximity of the land under acquisition in the revenue village Majri Mafi (Parwadoon) and have also tendered in evidence copy of a sale-deed as paper no.20-C on the original record to show that the circle rate as fixed by the Collector in the proximity of the land under acquisition is Rs. 4,000/- per Sq.Mt. The claimants have also filed paper no. 19-C, which is list of circle rates fixed by the Collector (effective from 1-11-2003 to 31-10-2005). The circle rate fixed by the Collector vide paper no. 19-C has not been disputed from the side of the appellant Indian Oil Corporation. The property sold under the sale-deed (paper no. 20C) for consideration of Rs.1,45,000/- included a shop standing over an area of 15.39 Sq. Mt. The Special Land Acquisition Officer had taken note in the award of as many as 73 sale deeds and out of them he has made a reference of six sale deeds whereby the rate of the land was within