RFA No. 1903 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision: 29.3.2010 (1) R.F.A. No. 1903 of 2005 (O&M) State of Haryana and others ..... Appellants Versus Smt. Ram Rati and others ....... Respondents (2) R.F.A. No. 1904 of 2005 (O&M) State of Haryana and others ..... Appellants Versus Smt. Sumitra and others ....... Respondents (3) R.F.A. No. 1905 of 2005 (O&M) State of Haryana and others ..... Appellants Versus Smt. Parkasho and others ....... Respondents (4) R.F.A. No.1906 of 2005 (O&M) State of Haryana and others ..... Appellants Versus Than Singh ....... Respondent (5) R.F.A. No. 1907 of 2005 (O&M) State of Haryana and others ..... Appellants Versus Hari Singh ....... Respondent RFA No. 1903 of 2005 2 (6) R.F.A. No. 1908 of 2005 (O&M) State of Haryana and others ..... Appellants Versus Suraj Bhan and others ....... Respondent (7) R.F.A. No. 1909 of 2005 (O&M) State of Haryana and others ..... Appellants Versus Ramphal ....... Respondent (8) R.F.A. No. 1910 of 2005 (O&M) State of Haryana and others ..... Appellants Versus Hazari Lal and others ...... Respondents (9) R.F.A. No. 1911 of 2005 (O&M) State of Haryana and others ..... Appellants Versus Sukhbir Singh and another ....... Respondents (10) R.F.A. No. 1912 of 2005 (O&M) State of Haryana and others ..... Appellants Versus Ishwar Singh and others ....... Respondents (11) R.F.A. No. 1913 of 2005 (O&M) State of Haryana and others ..... Appellants Versus Kalyan Singh ....... Respondent RFA No. 1903 of 2005 3 (12) R.F.A. No. 1914 of 2005 (O&M) State of Haryana and others ..... Appellants Versus Shiv Lal and another ....... Respondents (13) R.F.A. No. 1915 of 2005 (O&M) State of Haryana and others ..... Appellants Versus Rup Chand ....... Respondent (14) R.F.A. No. 1916 of 2005 (O&M) State of Haryana and another ..... Appellants Versus Satbir Singh ....... Respondent (15) R.F.A. No. 1917 of 2005 (O&M) State of Haryana and others ..... Appellants Versus Smt. Sukhwanti ....... Respondent (16) R.F.A. No. 1918 of 2005 (O&M) and Cross-Objections no.6-CI of 2006 State of Haryana and another ..... Appellants Versus Smt. Santosh Nandal ....... Respondent (17) R.F.A. No. 1919 of 2005 (O&M) State of Haryana and others ..... Appellants Versus Samunder Singh and others ....... Respondents RFA No. 1903 of 2005 4 (18) R.F.A. No. 2103 of 2005 (O&M) State of Haryana and another ..... Appellants Versus Bijrender Singh ....... Respondent CORAM : Hon'ble Mr. Justice Rajesh Bindal Present:- Mr. Ashish Gupta, AAG Haryana. Mr. Ramesh Hooda, Advocate for the respondents. RAJESH BINDAL, J **** This order will dispose of the bunch of appeals filed by the State and cross-objections filed by land owners impugning the judgment of the learned Court below assessing the compensation on account of acquisition of land. The facts have been extracted from RFA No. 1903 of 2005. Brief facts are that the State of Haryana acquired 2.80 acres of land pertaining to village Garhi Bohar Hadbast No. 135/1 Tehsil and District Rohtak, vide notification dated May 2, 2002 issued under Section 4 of the Land Acquisition Act, 1894 (for short 'the Act'). The aforesaid notification was followed by notification dated May 8, 2002 issued under Section 6 of the Act. The land in question was acquired for the purpose of construction of extension of Kheri Sadh Link Drain. The Land Acquisition Collector (for short 'the Collector') assessed the compensation of the acquired land @ Rs. 2,50,000/- per acre for Nehri kind of land and @ Rs. 1,50,000/- per acre for Banjar Kadim kind of land. The land owners being not satisfied with the award filed objections which were referred to the learned Court below and considering the material brought on record by the parties, learned Court below vide judgment dated March 12, 2005 assessed the compensation of the acquired land at uniform rate of Rs. 7,70,000/- per acre. It is this award of the learned Court below which is impugned by the State in the present set of appeals. In one of the appeals the land owners have filed cross-objections seeking further enhancement of compensation. Learned counsel for the appellants-State submitted that it is a case in which practically without there being any evidence on record the learned Court below has enhanced the compensation to Rs. 7,70,000/- per acres for both kinds of land as against the award of the Collector for Rs. 2,50,000/- per acre for Nehri and Rs. 1,50,000/- per acre for Banjar Kadim kind of land. Out of total 2.80 acres of acquired land it is only 8 marlas which was Nehri. Rest of the land was Banjar Kadim. Meaning thereby the enhancement is from Rs. 1,50,000/- to Rs. RFA No. 1903 of 2005 5 7,70,000/- per acre. He further submitted that the land owners did not produce on record any site plan locating the land pertaining to the sale deeds produced by them on record to seek enhancement of compensation. Infact in majority of the sale deeds the land had been purchased by Baba Mast Nath Educational Institution, which shows that it was not a kind of normal sale or the price which in normal circumstances a buyer and seller would settle. The land was purchased by the aforesaid institution for its expansion and they being in dire need thereof would pay any amount to purchase the land adjoining to their institution. The evidence led by the State in the form of sale deeds Ex. R1 to Ex.R 25 has been ignored without stating any reason therefor. The learned Court below has considered only sale deeds Ex.R3 to R5, R8, R12, R15, R16, R18 and R19, whereas there were other sale deeds also. The land pertaining to the aforesaid sale deeds has been located on the site plan produced on record as Ex. R26. If the price paid for purchase of the land therein is considered, the award of the Collector deserves to be upheld even if increase on account of time gap was granted to the land owners. The formula adopted by learned Court below in averaging the amount paid in the sale deeds produced by the land owners and some of the sale deeds produced by the State cannot stand in judicial scrutiny as the location thereof could not be compared vis-a-vis the acquired land. He further submitted that even though the land pertaining to the sale deeds produced by the land owners had not been pointed out on the site plan produced by the land owners, still the learned Court below went on to record the distance thereof from the acquired land. He further submitted that perusal of site plan Ex.R26 shows that land pertaining to sale deed Ex.R13 was quite close to the acquired land but the distance thereof has been mentioned as 60-100 kilas. The onus to prove the fair value of the land was on the land owners which was to be discharged by leading clinching and positive evidence. It was not the duty of the Court to probe the evidence led by both the parties to find out the location and distance of the land pertaining to the sale deeds produced by the parties specifically the land owners when the same had not been pointed out on the site plan. On the other land learned counsel for the land owners submitted that Aks-Shajra Ex.P15 was produced by the land owners which shows the rectangle numbers. In the sale deeds produced by the land owners Khasra numbers and Rectangle numbers have been mentioned and from that it could very well be found out as to where the location of the land pertaining to the sale deed was. He further submitted that oral evidence was led in support of the documentary evidence. The land in question is located quite close to the city. It was fit for urbanization and classification thereof as Nehri and Banjar Kadim was totally uncalled for, which is relevant only for the agricultural kind of land. Besides that there is no material on record which was referred to at the time of RFA No. 1903 of 2005 6 hearing. Heard learned counsel for the parties and perused the relevant referred record. 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, however, in the Aks-Shajra produced by them as Ex.P15 the land pertaining to those sale deeds had not been pointed out. For the purpose reliance was sought to be placed either on the site plan produced by the State or the oral statements of the witnesses which in my opinion is not enough as the onus to prove that the 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:- RFA No. 1903 of 2005 7 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 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 RFA No. 1903 of 2005 8 developed locality (vi) level vis-a-vis land under (vi) some special under acquisition disadvantageous factors which would deter a purchaser (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 RFA No. 1903 of 2005 9 known as a 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 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 RFA No. 1903 of 2005 10 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 the land owners had tried to prove by producing various sale deeds on record is that the land in question had great future potential, considering the fact that a large Educational Institution existing in the vicinity was expanding and for the purpose the land was being purchased by it. However, the location and its distance from the acquired land was not evident as the same had not been pointed out on any of the site plans. It was merely an exercise done by the learned Court below by mentioning the distances of the land forming part of the various sale deeds from the acquired land for which also in my opinion the clinching material was not there as there was apparent mistake in mentioning the distance pertaining to the land forming part of the sale deed Ex.P2. Many a times the land owners do not produce relevant sale deeds or the site plans or do not point out the land pertaining to the sale deeds on the site plan so produced in a calculated effort not to enable the court to reach to a right conclusion. As in case the land pertaining to the sale deeds produced by the land owners is marked on the site plan it is quite easy for the Court to consider the relevancy thereof for the purpose of determination of fair value of the acquired land. It is very difficult for the Court to determine compensation in the land acquisition cases unless there is a site plan on record showing the boundary of acquired land. The development existing on or near the acquired land on the date of issuance of notification under Section 4 of the Act and the exact location of the land/plot dealt with in various sale deeds sought to be relied upon by either of the parties in the evidence led by them to show the fair value of the acquired land. In my opinion, the evidence led by the land owners in the present case was not at all convincing which could enable the Court to reach to a definite conclusion to assess the market value of the acquired land. On the other hand it cannot be disputed that the land is always dear to the farmers. It is their bread and butter. They put hard labour thereon to RFA No. 1903 of 2005 11 earn their livelihood. It is with heavy heart that they have to part with the same only on account of the fact that it was a compulsory acquisition. Otherwise one may or may not agree to sell the land. Once some one is being asked to part with his source of livelihood he deserves to be compensated adequately. In my opinion merely because of lapse on the part of the land owners or their counsel in the Court below in not leading trustworthy and clinching evidence to prove the value of the land on the date of acquisition, they should not be made to suffer. For the reasons mentioned above, I deem it appropriate to set aside the judgment of learned court below and remand the matter back for fresh consideration after giving opportunity to the parties to clarify the exact position on record with regard to the sale deeds sought to be relied upon by the land owners and its exact location, vis-a-vis the acquired land. It is further directed with the setting aside of the impugned judgment the amount of compensation already paid to the land owners shall not be recovered back from them till such time the matter is dealt with and decided afresh by the learned Court below. Thereafter the parties shall abide by the judgment so delivered subject to their statutory rights. The parties are directed to appear before the learned District Judge, Rohtak, on May 1, 2010 for further proceedings. Learned District Judge, may either keep the references with himself or entrust the same to any of the Additional District Judge. Considering the fact that the acquisition in the present case was carried out way back in the year 2002, the matters should be disposed of on or before September 30, 2010, positively. The appeals as well as cross objections are disposed of in the manner indicated above. (RAJESH BINDAL) 29.3.2010 JUDGE Reema (Refer to Reporter)