RFA No. 3071 of 1993 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RFA No. 3071 of 1993 Date of Decision: 20.11.2009 Siria ..Appellant Vs. The State of Haryana ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.M.L.Sharma & Mr.A.P.Bhandari, Advocates, for the appellants. Mr.Rajiv Kawatra, Sr.DAG, Haryana, for the respondent/State. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. This order shall dispose of RFA Nos. 3071 to 3073, 3412 to 3414, 3432, 3733 and 3734 of 1993 titled Siria Vs. The State of Haryana; Mohan Vs. The State of Haryana; Jeet Ram Vs. The State of Haryana; Prem Singh @ Prem Chand Vs. The State of Haryana; Tejja Vs. The State of RFA No. 3071 of 1993 2 Haryana; Ranjit Singh alias Jeet (dead) through his L.Rs. Vs. The State of Haryana; Pal Singh Vs. The State of Haryana; Kehar Singh Vs. The State of Haryana and Bachan Singh alias Gurbachan Singh (dead) represented by L.Rs. Vs. The State of Haryana, respectively, as common questions of law and facts are involved in these appeals and they arise out of the common award. The appellant/land owners have challenged the award dated 3.6.1993 passed by the learned Additional District Judge, Ambala on a reference made under section 18 of the Land Acquisition Act (for short the Act). The State of Haryana decided to acquire land measuring100-31 acres in village Kundi Hadbast No.366 for public purposes, namely the development and utilization of the land for residential, commercial and industrial area for urban estate Panchkula vide Govt. Notification No.LAC (P)NTLA-80/2675 dated 24.6.1980 under section 4 of the Act. Notification under section 6 of the Act was also issued with respect to the land measuring 100-31 acres but the acquiring department gave demarcation for the land measuring 9.23 acres only which was the subject-matter of references before the learned Additional District Judge, Ambala. Besides raising objections against the acquisition of land the land owners had also claimed compensation at the rate of Rs.1250-3000/- per marlas but in support thereof no documentary evidence was produced. Therefore, in order to consider the market value the rates supplied by the Deputy Commissioner, Ambala were considered and land owners were RFA No. 3071 of 1993 3 awarded compensation at the rate of Rs.20640/- (Rupees twenty thousands six hundred and forty only) per acre for Chahi/Abi land by the learned Collector vide his award dated 17.9.1986. As already referred to above, land owners sought references under section 18 of the Act on the plea that the compensation awarded by the Collector was highly inadequate and less than the market value prevailing in the locality. It was pleaded case of the land owners that the value of the land in question was not less than Rs.5 lacs per acre at the time of publication of the notification under section 4 of the Act. The acquired land was said to be of good quality yielding 3 crops a year. It was also irrigated land. Water was available in plenty from kools free of costs almost throughout the year. The land was said to be having potentiality of being used for industrial purpose as number of industries were in existence adjacent to the land in question. It was also the stand of the land owners that the land was of very high potential value as it was situated near Chandigarh and Panchkula. A plea was also raised that the Government has pegged down the prices of the land in question by issuing frequent and repeated notifications. The reference was contested by the State wherein the allegations made by the appellants were controverted. It was pleaded by the State that the award was passed on the basis of rates supplied by the District Collector who was proper and competent authority under the revenue law to assess such rates based on average rates of sale transactions during that particular period executed for nearby land of similar category. It was denied RFA No. 3071 of 1993 4 that the award given by the Collector was unfair or below the actual market rate. On the pleadings of the parties the learned reference court framed the following issues:- 1. What was the market value of the acquired land on the date of issuance of notification under section 4 of the Land Acquisition Act? OPP 2. Whether the adequate compensation has not been awarded for the tube-well. If so what was the market value of the tube-wells installed in the acquired land? OPP 3. Whether the adequate compensation has not been paid for acquisition of Kools and the passage, if so what was their market value? OPP 4. Whether the value of the acquired land had been fridged as alleged, if so to what effect? OPP 5. Relief. In support of their claim the appellants examined PW 1 Sham Lal Patwari Halqa, Amadalpur. He deposed that the village Kundi was within his circle. He also deposed that he had seen the acquired land which was being irrigated by kool and further that the kool water was available to the land owners free of costs throughout the year. He also stated that village Ralli and Fatehpur adjoin the village Kundi and the land of all the three villages is of the same quality. He further deposed that village Judian and RFA No. 3071 of 1993 5 Maheshpur were also under his charge in the year 1986-87 and land of those villages was almost of the same quality. It was also in his evidence that acquired land was situated at a distance of 1 ½ acres from Ambala- Kalka road. It was further in his deposition that there is Industrial Area in the land of village Ralli across Ambala-Kalka road and that Sector 12-A of Panchkula was at some distance from area of village Kundi. PW 2 Ujjagar Singh, Agriculture Inspector Fatehpur also deposed regarding quality of the acquired land and deposed that it was equivalent to the quality of land of village Maheshpur and that kool water was available to the acquired land free of costs. PW 3 Som Nath, Patwari from the office of Collector, Panchkula deposed that the land of 15 villages was notified for acquisition for development of Panchkula town in the year 1971 and village Kundi was included in those villages. Notifications issued were proved on record as Ex.P.1 and P.2. He further deposed that the acquired land of village Kundi was situated at a distance of about 2 killas from industrial area of Panchkula and industrial area Panchkula adjoins Ambala-Kalka road and that the acquired land was about one killa away from the said road on the other side. It was also in his evidence that the land of villages Fatehpur, Ralli and Maheshpur was also acquired for development of Panchkula. PW 4 Kedar Nath Sachdeva, a retired circle Head Draftsman deposed that he had visited and seen the acquired land and that he had also seen the abadi of villages Maheshpur and Fatehpur and acquired land of village Fatehpur. He proved site plan Ex.P.3 showing the location of RFA No. 3071 of 1993 6 acquired land as well as location of certain sectors of Panchkula and abadi deh of village Meheshpur and Fatehpur. PW 5 Daulat Ram deposed that his land was adjacent to the acquired land and that his land was also situated in the area of village Ralli which was adjacent to the acquired land. He deposed about the good qualities of the land as also the facility of irrigation available thereto. He deposed that three crops could be grown in the acquired land and that the land was capable of yielding income of Rs.20,000/- per acre per year. He also deposed regarding location of the land to be near Ambala-Kalka road and Industrial Area of Panchkula. According to him the market value of the acquired land in the year 1980 was about 4.5 lacs per acre. PW 6 Kuldeep Singh also deposed on the same lines that the land situated in villages Ralli, Kundi, Fatehpur, Judian and Maheshpur was of the same quality and kool water from Ghagar river was available to the acquired land throughout the year without any charges. He also deposed that there was Pole Factory for making electric poles in the area of village Fatehpur which was at a distance of about 3 killas from the acquired land, whereas the Industrial Area of Panchkula was at a distance of one killa from the acquired land. Similarly, Sector 12-A of Panchkula was also at a distance of one killa way from the acquired land. Railway Station, Chandigarh was said to be at a distance of 3 Kms away from the acquired land and Grain Market Chandigarh was said to be 5 Kms away from the village. College was said to be about 2 Kms from the acquired land, whereas school was also situated in village Kundi. Nahan Kothi where the RFA No. 3071 of 1993 7 office of SDM was located was at a distance of 3 Kms from the village. He also deposed about the value of the acquired land in the year 1980 to be Rs.5 lacs per acre. Besides the oral evidence referred to above the land owners placed reliance on various awards announced by the various courts from time to time in support of their claim. Some sale deeds were also produced. The respondent/State, on the other hand, examined Dhoop Singh, Patwari as RW 1, who proved Ex.R.1 i.e. Aks Sijra of village Kundi and also copies of the sale deeds Ex.R.2 to R.4. It was also deposed by RW 1 that the land mentioned in sale deeds Ex. R.3 and R.4 was at a distance of half KM from the acquired land and adjoins the land of Fatehpur, whereas the land of sale deed Ex.R.2 was situated within the acquired land. The acquired land was said to be agricultural land. He also proved on record the index of all the sale deeds as Ex.R.5. It was deposed by him that the market value of the acquired land was not more than Rs.20640/- (Rupees twenty thousand six hundred and forty only) per acre. Learned reference court did not accept the oral evidence of PW 5 and PW 6 wherein they had claimed the market value to be Rs.5 lacs (Rupees five lacs only) per acre. This oral evidence was rejected for want of any sale deed or other reliable evidence on record. Learned reference court, therefore, took into consideration the various awards given by the different courts to determine the market value of the acquired land at the time of notification. Learned reference court, however, held that it was established on record that the land of villages Kundi, Fatehpur, Maheshpur, Ralli and RFA No. 3071 of 1993 8 Judian was almost of the same quality and there was no dispute between the parties on this point. The learned reference court also found that the location of the acquired land was about 1½ killa from Ambala-Kalka road and that Industrial Area of Panchkula was situated at a distance of about 2 killas from the acquired land. Sector 12-A Panchkula was located at a distance of about 1.25 Killas away from the acquired land. The appellants did not rely on Ex.P.4 for the reason that it related to village Dhillan and therefore, was not relevant to the acquired land. Ex.P.5 was an award dated 7.1.1983 passed by the learned Additional District Judge, Ambala, vide which market value of the acquired land of village Ralli was assessed at Rs.23750/- (Rupees twenty three thousand seven hundred and fifty only) per acre. This land was acquired in the year 1973. Ex.P.6 is the award dated 10.9.1988 passed by the learned Additional District Judge, Ambala vide which market value of the acquired land of village Judian was said to be Rs.1.50 lacs (Rupees one lac and fifty thousand only) per acre. This land was acquired vide notification dated 27.8.1981. Ex.P.7 was award vide which the market value of the acquired land of village Maheshpur was assessed at Rs.1.50 lacs (Rupees one lac and fifty thousand only) with respect to the notification published in the year 1983, whereas Ex.P.8 was copy of award dated 18.5.1991 qua notification of the year 1983 qua land of village Maheshpur wherein the market value of the land was assessed at Rs.1.50 lacs (Rupees one lac and fifty thousand only). RFA No. 3071 of 1993 9 Ex.P.9 was award dated 2.3.1985 passed by the learned Additional District Judge, Ambala qua the land of village Fatehpur with regard to notification of the year 1973 vide which the market value of the acquired land was assessed at Rs.23,750/- (Rupees twenty three thousand seven hundred and fifty only). Ex.P.12 was copy of award dated 1.9.1982 qua the land of village Maheshpur which was acquired vide notification of the year 1973 wherein again value of the land was determined at Rs.23,750/- (Rupees twenty three thousand seven hundred and fifty only) per acre. Ex.P.14 was copy of award dated 17.4.1993 passed by the learned Additional District Judge Ambala qua the land of village Fatehpur with regard to the notification of the year 1983 vide which market value of the land was determined at Rs.2.25 lacs (Rupees two lacs twenty five thousand only) per acre. Ex.P.15 was the copy of the sale deed dated 16.12.1977 vide which 2 marlas of land situated in village Kundi was sold for Rs.900/- (Rupees nine hundred only), whereas Ex.P.16 was copy of the sale deed dated 6.10.1978 vide which 5 marlas of agricultural land of village Kundi was sold for Rs.1500/- (Rupees one thousand and five hundred only). On the basis of evidence referred to above the contention raised by the learned counsel for the appellants before the learned reference court was that the different awards showed that there was increase of Rs.20,000/- (Rupees twenty thousand only) per year and therefore, the value of acquired land was assessed at Rs.1,63,750/- (Rupees one lac sixty three thousand seven hundred and fifty only) per acre. This plea was not accepted for the reasons that the court found RFA No. 3071 of 1993 10 that valuation is to be done on the basis of the location of the acquired land in a particular case. The learned Reference court found that the land of village Fatehpur which was acquired in 1983 for which award Ex.P.14 was passed on 17.4.1993 was situated on the road leading to Ambala-Kalka road i.e. on the main road leading to Nahan Kothi to Nahan whereas the acquired land was not situated on the main road but at a distance of 1/1½ killas away from the main Ambala-Kalka road. Therefore, the learned reference court found that Ex.P.14 could not be applied to determine the market value of the land in question. The learned reference court found that the award Ex.P.7 also could not be the basis and it was with respect to the land acquired in the year 1983 vide which the value of the land was determined at Rs.1.50 lacs. The learned court held that the market value of the acquired land was to be less than the one determined vide Ex.P.7 as the same was acquired in the year 1980 i.e. 3 years prior to the land falling in Ex.P.7. The learned reference court, therefore, held that if Rs.20,000/- (Rupees twenty thousand only) cut per year is applied to this then the market value would be Rs.1 lac (Rupees one lac only) per acre . Learned reference court also recorded a finding that the award Ex.P.6 was with regard to the land acquired in the year 1981 i.e. one year after the acquisition of the land in the present case. The learned reference court also found that the award Ex.P.6 related to village Judian which was situated near Dhillon theater and Motor Market Mani Majra and other urban complexes. In the said case the market value was assessed at Rs.1.50 lacs RFA No. 3071 of 1993 11 per acre. The learned reference court, therefore, held that market price of the present land would be less because acquisition in this case was of one year prior to the year under consideration in Ex.P.6. The learned reference court found that even if the sale deeds produced on record are taken into consideration, in that event also the value of the land comes to Rs.1 lac per acre. The learned reference court further did not rely upon the sale deeds produced on record by the respondent which represented the value of the land to Rs.29,000/- (Rupees twenty nine thousand only). Thus, on over all assessment of the oral and documentary evidence, learned reference court after taking into consideration the potentiality and location of the acquired land assessed the market value at Rs.1 lac per acre. Land owners were also held to be entitled to statutory benefits under the Act on assessed value of land. Mr.M.L.Sharma, learned counsel appearing on behalf of the appellants challenged the impugned award on the plea that the learned reference court had not applied the settled principles of law for determining the market value of the acquired land. The contention of the learned counsel was that on the facts and circumstances of each case one of the following principles can be applied to determine the market value:- 1. The transaction prior to the notification under section 4 of the Act including similar transaction can be taken into consideration and under the given facts and circumstances even average of transactions prior to the notification can be taken into consideration for determining the market value. RFA No. 3071 of 1993 12 2. In case there are no transactions available in close proximity prior to the notification then the award passed by the court with respect to the land acquired in the vicinity can be taken into consideration by giving increase by 12 per cent per annum with respect to the acquisition for the previous period. 3. The market value of the small transactions can also be formed the basis of fixation of market value by imposing a cut of 33 per cent thereon for the chunk of land acquired. 4. In case of availability of transactions in the same village then these can be taken into consideration but in the absence of any transaction of the village then the transactions qua the adjoining villages can also be taken into consideration or reasonable cut or increase can be applied keeping in view the location of the acquired land, and 5. Finally it is open to the court to fix the market value by guess work on the available material. On the basis of principles referred to above, Mr.M.L.Sharma, learned counsel for the appellants contented that there is no bar to taking into consideration post notification sale transactions or awards to determine the market value. In support of this contention learned counsel for the appellant placed reliance on the judgment of Hon'ble Supreme Court in the case of Mehta Ravindrarai Ajitrai through his heirs and Legal Representatives and Ors. Vs. State of Gujarat 1989 (2) RRR 243, RFA No. 3071 of 1993 13 wherein Hon'ble Supreme court was pleased to lay down as under:- “4. We do not feel called upon to enter into a detailed scrutiny of the evidence led by the parties before the learned Civil Judge. The main instance relied upon by the claimants was by way of an agreement to sell dated January 21, 1957 and a sale deed dated April 2, 1957 in respect of the sale of 42552 square yards of land but of survey No.233/2 which is adjoining the land with which we are concerned which forms part of survey No.331. The land sold under this instance was known as “Kesarbagh” and was sold to Mahalaxmi Mills Limited by Prince Nirmalkumarsinghji. The rate at which it sold works out to Rs.3 per square yard. On the basis of this instance, the claimants had made their claim at Rs.3 per square yard before the Land Acquisition Officer. The High Court inter alia rejected this instance on the basis that the contents of the sale deed were not property proved. However, after an order for remand made by this Court on August 25, 1981 evidence has been led regarding the sale and the sale deed has been duly proved by the evidence of one Dharamdas, a director of Mahalaksmi Mills Limited, the purchaser, and the vendor Prince Nirmalkumarsinghji. It was marked originally as Exhibit 87 and after the evidence on remand as Exhibit 152. The evidence shows that this land was just adjacent to the land of the purchaser, Mahalaksmi Mills Limited. The agreement of RFA No. 3071 of 1993 14 sale is dated January 21, 1957 and the conveyance or sale deed is dated April 2, 1957 as aforestated. The price has been fixed under the agreement of sale. This agreement of sale was entered into about five months after the publication of section 4 notification in the case before us. The High Court rejected the said instance on the ground that the contents of the sale deed were not proved although the execution thereof was duly proved. In view of the evidence led after remand, it cannot be disputed that this agreement of sale as well as the sale deed have been duly proved and they have been duly marked as exhibits. The High Court further took the view that in any event no reliance could be placed on this instance of sale because the acquisition of the land in question before us was for the construction of an industrial estate as Bhavnagar and such construction was bound to have pushed up the price of land in the surrounding area. There is, however, nothing in the evidence to show that there was any sharp or speculative rise in the price of the land after the acquisition and this has been noticed by the High Court. It appears that under these circumstances, the High Court was not justified in not taking this instance into account at all as it has done on the ground that it was a post-acquisition sale and could not be regarded as a comparable instance at all. The market value of a piece of property for purposes of section 23 of the Land Acquisition Act RFA No. 3071 of 1993 15 is stated to be the price at which the property changes hands from a willing seller to a willing, but not too anxious a buyer, dealing at arm's length; Prices fetched for similar lands with similar advantages and potentialities under bona fide transactions of sale at or about the time of the preliminary notification are the usual and, indeed the best, evidence of market value (See. Administrator General of west Bengal Vs. Collector, Varansi (1988) 2 SCC 150. 5. Keeping these factors in mind we feel that although the instance reflected in the sale deed (Ex.152) and the agreement for sale in connection with that land, pertains to a sale after the acquisition, it can be fairly regarded as reasonably proximate to the acquisition and, in the absence of any evidence to show that there was any speculative or sharp rise in the prices after the acquisition, the agreement to sell dated January 21, 1957 must be regarded as furnishing some light on the market value of the land on the date of publication of section 4 notification. However, certain factors have to be taken into account and appropriate deductions made from the rate disclosed in the said agreement to sell in estimating the market value of the land with which we are concerned at the date of the acquisition. One of these factors is that there seems to have been some rise in the price of land on account of the acquisition of the