Case: Manoj Kumar and Ors Vs. State of Haryana and Ors

of market value the price reflected therein may the as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-a-vis land under acquisition by placing the two in juxtaposition. (12) A balance sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated a price variation as a prudent purchaser would do. (13) The market value of the land under acquisition has thereafter to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors. (14) The exercise indicated in Clauses (11) to (13) has to be undertaken in a common sense manner, as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors: Plus factors Minus factors 1. smallness of size 1. largeness of area 2. proximity to a road 2. situation in the interior at a distance from the road 3. frontage on a road 3. narrow strip of land with very small frontage compared to depth 4. nearness to 4. lower level developed area requiring the depressed portion to be filled up 5. regular shape 5. remoteness from developed locality 6. level vis-à-vis 6. some special land under disadvantageous factor acquisition which would deter a purchaser 7. special value for an owner of an adjoining property to whom it may have some very special advantage (15) The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds. cannot be compared with a large tract or block of land of say 10,000 sq. yds. or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approximately between 20 per cent to 50 per cent to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be locked up, will be longer or shorter and the attendant hazards. (16) Every case must be dealt with on its own fact pattern bearing in mind all these factors as a prudent purchaser of land in which position the judge must place himself. (17) These are general guidelines to be applied with understanding informed with common sense. 27. When we take into consideration various sale transactions, even if we choose out of sale deeds which had been placed on record, one of the transaction reflects the price of approximately Rs. 2,500/- per square yard. When we consider the decision of Swaran Singh, the compensation has been determined by the High Court with respect to Notification dated 28.4.1999. The Award was passed, on the basis of the transaction dated 10.6.1997, at the rate of Rs. 1560/- per square meter between Power Grid Corporation and HUDA. 28. The High Court has fixed the compensation at Rs. 1560/- per square meter in the case of Swaran Singh (supra). In the case of Swaran Singh (supra), the High Court has observed that it was prepared to make reduction at about 20% but, as the transaction took place in the year 1997, an escalation at about 10% per year would offset the reduction that might be required. Then the value of the land under Ex. P8 on 10.6.1997 has been taken into consideration. Thus the arguments raised by the learned Counsel for the State that in the Swaran Singhs case, no cut had been applied, cannot be said to be correct but at the same time, the adequate cut had not been applied in said case for development when large tract is acquired. The Certain area has to be utilized in development. 29. Though we could have discarded decisions of Swarna Singh in toto. However considering the sale transactions of subsequent year also the compensation has to be worked out. We take into consideration both. 30. The High Court has determined the compensation in the instant case by adding 15% cumulatively over and above what has been determined in the case of Swaran Singh. The High Court has given compensation at the rate of Rs. 3610/- per square meters i.e. Rs. 1,46,09,000/- per acre. 31. The High Court has granted 15% cumulative increase which was not justified. In the decision of Om Prakash (supra) 12% increase was given. Even if we accept some increase annually due to development made after previous acquisition but that could not have been granted on cumulative basis but on a flat basis, that too considering subsequent rate offered for nearby areas. There was no justification to grant 15% cumulative increase per annum. Normally 10% to 12% flat increase is to be given, as observed in Haridwar Development Authority v. Raghubir Singh and Ors. (2010) 11 SCC 581. 32. Even if we calculate compensation by adding between 12 to 13% flat increase, taking base price at Rs. 1560/- granted in the case of Swaran Singh in the facts of the case, the price would come approximately to Rs. 1.10 crores per acre. Further deduction in addition to deduction made in Swaran Singhs case (supra) is required to be made towards development, it would be appropriate to deduct further amount of Rs. 15 lakhs.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11. After hearing learned Counsel for the parties, we are of the considered opinion that the methodology adopted by the High Court for determining the compensation could not be said to be appropriate and in accordance with the settled proposition of law by a catena of decisions of this Court. It was incumbent upon the High Court to take into consideration various transactions that were on record, entered into before the date of issuance of Notification Under Section 4 of the Act.12. The High Court has also erred in law in not deducting the amount towards the development of exemplar sale of 1997. When the large area had been acquired. The two kind of deductions have to be made one for development and in case of exemplar transaction is a small area, the reduction is required to be made to arrive at the value of large tract.13. In Major General Kapil Mehra and Ors. v. Union of India and Anr. [(2015) 2 SC 262] this Court has considered various decisions regarding deduction to be made for development and if exemplar is small developed plots how its value is to be worked out for large areas and observed:33. In Haryana State Agricultural Market Board v. Krishan Kumar, (2011) 15 SCC 297, it was held as under:10. It is now well settled that if the value of small developed plots should be the basis, appropriate deductions will have to be made therefrom towards the area to be used for roads, drains, and common facilities like a park, open space, etc. Thereafter, further deduction will have to be made towards the cost of development, that is, the cost of leveling the land, cost of laying roads and drains, and the cost of drawing electrical, water and sewer lines.35. Reiterating the Rule of one-third deduction towards development, in Sabhia Mohammed Yusuf Abdul Hamid Mulla v. Special Land Acquisition Officer, (2012) 7 SCC 595  , this Court in paragraph 19 held as under:19. In fixing the market value of the acquired land, which is undeveloped or underdeveloped, the courts have generally approved deduction of 1/3rd of the market value towards development cost except when no development is required to be made for implementation of the public purpose for which land is acquired. In Kasturi v. State of Haryana (2003) 1 SCC 354  ) the Court held: (SCC pp. 359-60, para 7)7... It is well settled that in respect of agricultural land or undeveloped land which has potential value for housing or commercial purposes, normally 1/3rd amount of compensation has to be deducted out of the amount of compensation payable on the acquired land subject to certain variations depending on its nature, location, extent of expenditure involved for development and the area required for road and other civic amenities to develop the land so as to make the plots for residential or commercial purposes. A land may be plain or uneven, the soil of the land may be soft or hard bearing on the foundation for the purpose of making construction; maybe the land is situated in the midst of a developed area all around but that land may have a hillock or may be low-lying or may be having deep ditches. So the amount of expenses that may be incurred in developing the area also varies. A claimant who claims that his land is fully developed and nothing more is required to be done for developmental purposes must show on the basis of evidence that it is such a land and it is so located. In the absence of such evidence, merely saying that the area adjoining his land is a developed area, is not enough, particularly when the extent of the acquired land is large and even if a small portion of the land is abutting the main road in the developed area, does not give the land the character or a developed area. In 84 acres of land acquired even if one portion on one side abuts the main road, the remaining large area where planned development is required, needs laying of internal roads, drainage, sewer, water, electricity lines, providing civic amenities, etc. However, in cases of some land where there are certain advantages by virtue of the developed area around, it may help in reducing the percentage of cut to be applied, as the developmental charges required may be less on that account. There may be various factual factors which may have to be taken into consideration while applying the cut in payment of compensation towards developmental charges, may be in some cases it is more than 1/3rd and in some cases less than 1/3rd. It must be remembered that there is difference between a developed area and an area having potential value, which is yet to be developed. The fact that an area is developed or adjacent to a developed area will not ipso facto make every land situated in the area also developed to be valued as a building site or plot, particularly when vast tracts are acquired, as in this case, for development purpose.The Rule of 1/3rd deduction was reiterated in Tejumal Bhojwani v. State of U.P. ((2003)10 SCC 525  , V. Hanumantha Reddy v. Land Acquisition Officer, (2003) 12 SCC 642  , H.P. Housing Board v. Bharat S. Negi (2004) 2 SCC 184     and Kiran Tandon v. Allahabad Development Authority (2004)10 SCC 745  36. While determining the market value of the acquired land, normally one-third deduction i.e. 33 1/3% towards development charges is allowed. One-third deduction towards development was allowed in Tehsildar(L.A.) v. A. Mangala Gowri, (1991) 4 SCC 218  ; Gulzara Singh v. State of Punjab, (1993) 4 SCC 245  ; Santosh Kumari v. State of Haryana, (1996) 10 SCC 631  ; Revenue Divisional Officer & L.A.O. v. Sk. Azam Saheb, (2009) 4 SCC 395  ; A.P. Housing Board v. K. Manohar Reddy, (2010)12 SCC 707  ; Ashrafi v. State of Haryana, (2013) 5 SCC 527     and Kashmir Singh v. State of Haryana, (2014) 2 SCC 165.  37. Depending on nature and location of the acquired land, extent of land required to be set apart and expenses involved in development, 30% to 50% deduction towards development was allowed in Haryana State Agricultural Market Board v. Krishan Kumar (2011) 15 SCC 297; Director, Land Acquisition v. Malla Atchinaidua 2006 (12) SCC 87  ; Mummidi Apparao v. Nagarjuna Fertilizers & Chemicals Ltd. AIR 2009 SC 1506  ; and Lal Chand v. Union of India (2009) 15 SCC 769.  38. In few other cases, deduction of more than 50% was upheld. In the facts and circumstances of the case in Basavva v. Land Acquisition Officer, (1996) 9 SCC 640  , this Court upheld the deduction of 65%. In Kanta Devi v. State of Haryana (2008) 15 SCC 201  , deduction of 60% towards development charges was held to be legal. This Court in Subh Ram v. State of Haryana, (2010) 1 SCC 444  , held that deduction of 67% amount was not improper. Similarly, in Chandrasekhar v. Land Acquisition Officer, (2012) 1 SCC 390  , deduction of 70% was upheld.39. We have referred to various decisions of this Court on deduction towards development to stress upon the point that deduction towards development depends upon the nature and location of the acquired land. The deduction includes components of land required to be set apart under the building Rules for roads, sewage, electricity, parks, and other common facilities and also deduction towards development charges like laying of roads, construction of sewerage.Thus, it was incumbent on the High Court to make appropriate deductions.14. In our opinion, the High Court could not have placed an outright reliance on the decision of Swaran Singhs case, without considering the nature of transaction relied upon in the said decision. The decision could not have been applied ipso facto to the facts of the instant case. In such cases, where such judgments/awards are relied on as evidence, though they are relevant, but cannot be said to be binding with respect to the determination of the price, that has to depend on the evidence adduced in the case. However, in the instant case, it appears that the land in Swaran Singhs case was situated just across the road as observed by the High Court as such it is relevant evidence but not binding. As such it could have been taken into consideration due to the nearness of the area, but at the same time what was the nature of the transaction relied upon in the said case was also required to be looked into in an objective manner. Such decisions in other cases cannot be adopted without examining the basis for determining compensation whether sale transaction referred to therein can be relied upon or not and what was the distance, size and also bonafide nature of transaction before such judgments/awards are relied on for deciding the subsequent cases. It is not open to accepting determination in a mechanical manner without considering the merit. Such determination cannot be said to be binding. We have come across several decisions where the High Court is adopting the previous decisions as binding. The determination of compensation in each case depends upon the nature of land and what is the evidence adduced in each case, may be that better evidence has been adduced in later case regarding the actual value of property and subsequent sale deeds after the award and before preliminary notification Under Section 4 are also to be considered, if filed. It is not proper to ignore the evidence adduced in the case at hand. The compensation cannot be determined by blindly following the previous award/judgment. It has to be considered only a piece of evidence not beyond that. Court has to apply the judicial mind and is supposed not to follow the previous awards without due consideration of the facts and circumstances and evidence adduced in the case in question. The current value reflected by comparable sale deeds is more reliable and binding for determination of compensation in such cases award/judgment relating to an acquisition made before 5 to 10 years cannot form the safe basis for determining compensation.15. The awards and judgment in the cases of others not being inter parties are not binding as precedents. Recently, we have seen the trend of the courts to follow them blindly probably under the misconception of the concept of equality and fair treatment. The courts are being swayed away and this approach in the absence of and similar nature and situation of land is causing more injustice and tantamount to giving equal treatment in the case of unequals. As per situation of a village, nature of land its value differ from the distance to distance even two to three-kilometer distance may also make the material difference in value. Land abutting Highway may fetch higher value but not land situated in interior villages.16. The previous awards/judgments are the only piece of evidence at par with comparative sale transactions. The similarity of the land covered by previous judgment/award is required to be proved like any other comparative exemplar. In case previous award/judgment is based on exemplar, which is not similar or acceptable, previous award/judgment of court cannot be said to be binding. Such determination has to be out rightly rejected. In case some mistake has been done in awarding compensation, it cannot be followed on the ground of parity an illegality cannot be perpetuated. Such award/judgment would be wholly irrelevant.17. There is yet another serious infirmity seen in following the judgment or award passed in acquisition made before 10 to 12 years and price is being determined on that basis by giving either flat increase or cumulative increase as per the choice of individual Judge without going into the factual scenario. The said method of determining compensation is available only when there is absence of sale transaction before issuance of notification Under Section 4 of the Act and for giving annual increase, evidence should reflect that price of land had appreciated regularly and did not remain static. The Recent trend for last several years indicates that price of land is more or less static if it has not gone down. At present, there is no appreciation of value. Thus, in our opinion, it is not a very safe method of determining compensation.18. To base determination of compensation on a previous award/judgment, the evidence considered in the previous judgment/award and its acceptability on judicial parameters has to be necessarily gone into, otherwise, gross injustice may be caused to any of the parties. In case some gross mistake or illegality has been committed in previous award/judgment of not making deduction etc. and/or sufficient evidence had not been adduced and better evidence is adduced in case at hand, previous award/judgment being not inter-parties cannot be followed and if land is not similar in nature in all aspects it has to be out-rightly rejected as done in the case of comparative exemplars. Sale deeds are at par for evidentiary value with such awards of the court as court bases its conclusions on such transaction only, to ultimately determine the value of the property.19. To rely upon judgment/award in case it does not form part of evidence recorded by reference court, an application Under Order 41 Rule 27 is to be filed to adduce evidence and if it is allowed opposite party has to be given opportunity to lead evidence in rebuttal. The award/judgment cannot be taken into consideration while hearing arguments unless they form part of evidence in the case.24. Basic principle before following award/judgment or comparative sales is that land should be comparable in nature and quality as laid down in State of Madhya Pradesh v. Kanshi Ram (2014) 100 SCC 506   and Hirabai and Ors. v. Land Acquisition Officer-cum-Assistant Commission (2010) 10 SCC 492     and in close proximity of time to preliminary notification Under Section 4 of the Act. In the instant case, we hold that the High Court could not have followed the judgment in a blind manner as done without due consideration of various aspects.25. The High Court has observed that the decision in Swaran Singhs case has been affirmed by the judgment of the Supreme Court. As a matter of fact, the special leave petition was dismissed. The dismissal of the special leave petition without assigning of reason cannot be treated as a binding precedent of this Court. The High Court treated as if this Court has decided the matter on merits and has approved the decision of the High Court. Even if that be so, the Courts are bound to take into consideration the various aspects as discussed in each and every case before relying upon and following the award or judgment in other cases relating to determination of the compensation as there is no res judicata in such cases. In each case, some change in the factual scenario is bound to be there such as quality of the land, category, time gap and largeness and smallness, deduction to be made. There are various factors which have to be taken into consideration only then, decision has to be rendered.26. This Court in Chimanlal Hargovind Das v. Special Land Acquisition Officer, Poona and Anr. (1988) 3 SCC 751     has laid down broad principles to be followed in the case of determination of compensation thus:4. The following factors must be etched on the mental screen:(1) A reference Under Section 18 of the Land Acquisition Act is not an appeal against the award and the court cannot take into account the material relied upon by the Land Acquisition Officer in his award unless the same material is produced and proved before the court.(2) So also the award of the Land Acquisition Officer is not to be treated as a judgment of the trial court open or exposed to challenge before the court hearing the reference. It is merely an offer made by the Land Acquisition Officer and the material utilised by him for making his valuation cannot be utilised by the court unless produced and proved before it. It is not the function of the court to sit in appeal against the award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an appellate court.(3) The court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it.(4) The claimant is in the position of a Plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the court. Of course the materials placed and proved by the other side can also be taken into account for this purpose.(5) The market value of land under acquisition has to be determined as on the crucial date of publication of the notification Under Section 4 of the Land Acquisition Act (dates of notifications Under Sections 6 and 9 are irrelevant).(6) The determination has to be made standing on the date line of valuation (date of publication of notification Under Section 4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price.(7) In doing so by the instances method, the court has to correlate the market value reflected in the most comparable instance, which provides the index of market value.(8) Only genuine instances have to be taken into account. (Sometimes instances are rigged up in anticipation of acquisition of land.)(9) Even post-notification instances can be taken into account (1) if they are very proximate, (2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects.(10) The most comparable instances out of the genuine instances have to be identified on the following considerations:(i) proximity from time angle,(ii) proximity from situation angle.(11) Having identified the instances which provide the index of market value the price reflected therein may the as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-a-vis land under acquisition by placing the two in juxtaposition.(12) A balance sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated a price variation as a prudent purchaser would do.(13) The market value of the land under acquisition has thereafter to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors.(14) The exercise indicated in Clauses (11) to (13) has to be undertaken in a common sense manner, as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors:Plus factors Minus factors1. smallness of size 1. largeness of area 2. proximity to a road2. situation in the interior at a distance from the road3. frontage on a road 3. narrow strip of land with very small frontage compared to depth4. nearness to 4. lower level developed area requiring the depressed portion to be filled up5. regular shape 5. remoteness from developed locality6. level vis-à-vis 6. some special land under disadvantageous factor acquisition which would deter a purchaser7. special value for an owner of an adjoining property to whom it may have some very special advantage(15) The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds. cannot be compared with a large tract or block of land of say 10,000 sq. yds. or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approximately between 20 per cent to 50 per cent to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be locked up, will be longer or shorter and the attendant hazards.(16) Every case must be dealt with on its own fact pattern bearing in mind all these factors as a prudent purchaser of land in which position the judge must place himself.(17) These are general guidelines to be applied with understanding informed with common sense.27. When we take into consideration various sale transactions, even if we choose out of sale deeds which had been placed on record, one of the transaction reflects the price of approximately Rs. 2,500/- per square yard. When we consider the decision of Swaran Singh, the compensation has been determined by the High Court with respect to Notification dated 28.4.1999. The Award was passed, on the basis of the transaction dated 10.6.1997, at the rate of Rs. 1560/- per square meter between Power Grid Corporation and HUDA.28. The High Court has fixed the compensation at Rs. 1560/- per square meter in the case of Swaran Singh (supra). In the case of Swaran Singh (supra), the High Court has observed that it was prepared to make reduction at about 20% but, as the transaction took place in the year 1997, an escalation at about 10% per year would offset the reduction that might be required. Then the value of the land under Ex. P8 on 10.6.1997 has been taken into consideration. Thus the arguments raised by the learned Counsel for the State that in the Swaran Singhs case, no cut had been applied, cannot be said to be correct but at the same time, the adequate cut had not been applied in said case for development when large tract is acquired. The Certain area has to be utilized in development.29. Though we could have discarded decisions of Swarna Singh in toto. However considering the sale transactions of subsequent year also the compensation has to be worked out. We take into consideration both.30. The High Court has determined the compensation in the instant case by adding 15% cumulatively over and above what has been determined in the case of Swaran Singh. The High Court has given compensation at the rate of Rs. 3610/- per square meters i.e. Rs. 1,46,09,000/- per acre.31. The High Court has granted 15% cumulative increase which was not justified. In the decision of Om Prakash (supra) 12% increase was given. Even if we accept some increase annually due to development made after previous acquisition but that could not have been granted on cumulative basis but on a flat basis, that too considering subsequent rate offered for nearby areas. There was no justification to grant 15% cumulative increase per annum. Normally 10% to 12% flat increase is to be given, as observed in Haridwar Development Authority v. Raghubir Singh and Ors. (2010) 11 SCC 581.  32. Even if we calculate compensation by adding between 12 to 13% flat increase, taking base price at Rs. 1560/- granted in the case of Swaran Singh in the facts of the case, the price would come approximately to Rs. 1.10 crores per acre. Further deduction in addition to deduction made in Swaran Singhs case (supra) is required to be made towards development, it would be appropriate to deduct further amount of Rs. 15 lakhs.