JUDGMENT Prakash Krishna, J.
1. This appeal Under Section 54 of the Land Acquisition Act has been preferred by the Acquiring Body against the judgment and decree dated 22nd May, 1993 passed by the 16th Additional District Judge, Allahabad in LAR No. 291 of 1991.
2. The State Government acquired the land of the claimant respondents being plots No. 198 (area 6 Bighas 11 Biswas and 11 Dhoors) and plot No. 200 area 5 Biswas and 5 Dhoors situate in village Deo-Ghat Jhalwa, pergana and tehsil Chail, District Allahabad for the purpose of construction of Deo Ghat Colony. A notification Under Section 4 of the Land Acquisition Act was published on 6.2.1987. The Special Land Acquisition Officer by its award dated 28th March, 1989 determined the market value of the land acquired for the purpose of payment of compensation to the landholders. He adopted belting system and carved out three belts. The land in question' according to the Special Land Acquisition Officer falls in third belt and awarded compensation at the rate of Rs. 20.000/- per bigha. Feeling dissatisfied with the award, a reference Under Section 18 of the Act was made to the Civil Court, at the instance of the claimant respondents for the purpose of determining the market value of the land so, acquired. The Reference Court by its judgment and award under appeal has awarded compensation at the rate of Rs. 3,500/- per biswas which comes to Rs. 70,000/- per bigha. Challenging the said award the present appeal has been filed.
3. Heard the Counsel for the parties and perused the record. The only question involved in the present appeal is regarding the determination of the market value of the plot Nos. 198 and 200 of village Deoghat Jhalwa, District Allahabad, on the date of notification Under Section 4 of the Land Acquisition Act.
4. Shri R.B. Singhal, the learned Counsel for the appellant submitted that the Court below was not justified in enhancing the market value of the land from Rs. 20,000/- per bigha to Rs. 70,000/- per bigha. He submitted that the Court below has filed to make the deduction while determining the market value of the plots in question due to largeness of the land acquired. He submitted that the sale deed of Shitla Prasad has been taken as the exemplar which is of the year 1983. The said sale deed is with respect to the plot No. 86 (area two and half biswas) of the same village Jhalwa. The Court below committed error of law in not making a deduction on account of largeness of area while determining the market value of the plots in question on account of the smallness of the area which was subject matter of the sale deed by Shitla Prasad. In contra, the learned Counsel for the claimant respondent submitted that the Court below has awarded compensation towards the lower side and prayed for further enhancement of the amount of the compensation. The claimant respondents have also preferred cross-objections for further enhancement.
5. The Supreme Court in its various judgments has laid down the principle for determining the market value of the land acquired under the Land Acquisition Act. In the case of Administrator General of West Bengal v. Collector of Varanasi, AIR 1988 SC 943, it has been held as follows :-
"It is trite proposition that prices fetched for small plots cannot form safe basis for valuation of large tracts of land as the two arc not comparable properties. [Sec Collector of Lakhimpur v. B.C. Dutta, AIR 1971 SC 2015; Mirza Nausherwan Khan v. Collector (Land Acquisition), Hyderabad, (1975) SCR 184: AIR 1974 SC 2247; Padma Uppal v. State of Punjab, (1977) 1 SCR 329: AIR 1977 SC 580; Smt. Kaushalya Devi Bogra v. Land Acquisition Officer, Aurangabad, (1984) 2 SCR 900 : AIR 1984 SC 892]. The principle that evidence of market-value of sales of small, developed plots is not a safe guide in valuing large extents of land has to be understood in its proper perspective. The principle requires that prices fetched for small developed plots cannot directly be adopted in valuing large extents. However, if it is shown that the large extent to be valued does admit of and is ripe for use for building purposes; that building lots that could be laid out on the land would be good selling propositions and that valuation on the basis of the method of a hypothetical lay-out could with justification be adopted, then in valuing such small, laid-out sites the valuation indicated by sale of comparable small sites in the area at or about the time of the notification would be relevant. In such a case, necessary deductions for the extent of land acquired for the formation of roads and other civic amenities; expenses of development of the sites by laying-out roads, drains, sewers, water and electricity lines, and the interest on the outlays for the period of deferment of the realization of the price; the profits of the venture etc. are to be made. In Brig. Sahib Singh Kalha v. Amritsar Improvement Trust, (1982) 1 SCC 419 : AIR 1982 SC 940. This Court indicated that deductions for land required for roads and other developmental expenses can, together, come up to as much as 53%. But the prices fetched for small plots cannot directly be applied in the case of large areas, for the reason that the former reflects the 'retail' price of land and the latter the ' wholesale' price.
The sale transaction at Ext. 24 was an year later. Such subsequent transactions which arc not proximate in point of time to the acquisition can be taken into account for purposes of determining whether as on the date of acquisition there was an upward trend in the prices of land in the area. Further under certain circumstances where it is shown that the market was stable and there were no fluctuations in the prices between the date of the preliminary notification and the date of such subsequent transaction, the transaction could also be relied upon to ascertain the market value. This Court in State of U.P. v. Maj. Jitender Kumar, AIR 1982 SC 876 (877), observed:
"......It is true that the sale deed Ext. 21 upon which the High Court has relied is of a date three years later than the Notification Under Section 4 but no material was produced before the Court to suggest that there was any fluctuation in the market rate at Mccrut from 1948 onwards till 1951 and it so to what extent. In the absence of any material showing any fluctuation in the market rate the High Court though it fit to rely upon Ex. 21 under which the Housing Society itself had purchased land in the neighbourhood of the land (in) dispute. On the whole we arc not satisfied that any error was committed by the High Court in relying upon the sale deed Ex. 21...."
But this principle could be appealed to only where there is evidence to the effect that there was no upward surge in the prices in the interregnum. The burden of establishing this would be squarely on the party relying on such subsequent transaction, In the present case appellant did not endeavour to show that between the date of preliminary notification i.e. 4.7.1959 and the date of Ext. 24 i.e. 18.8.1960 there was no appreciation in the value of land in the area. Therefore. Ext. 24 cannot be relied upon as affording evidence of the market value as on 4.7.1959. We cannot accept the argument that the price indicated in Ext. 24 should be accepted after allowing an appropriate deduction for the possible appreciation of the land values during the period of one year. Apart from other difficulties in this exercise, there is no evidence as to the rate and degree of appreciation in the values of land so that the figure could be jobbed backwards from 14.7.1960 to 4.7.1959."
6. Recently the Supreme Court in the case of Land Acquisition Officer Kammar Pally Village, Nijamabad District, A.P. v. Nookla Raja Mallu, 2003 AIR SCW 6674, has held that where large area is the subject matter of acquisition, the rate at which same plots are sold cannot be same criteria. Reference has been made to a number of its earlier judgments. However, it has been held that it cannot be laid down as an absolute proposition that the rates fixed for small plots cannot be the basis for fixation of rates. Where there is no other material, the Court may in appropriate cases make comparison of prices paid for small plots of land. However, in such cases necessary deductions/adjustments have to be made while determining the prices.
7. A Division Bench of this Court in the case of Krishi Utpadan Mandi Samiti v. Khushi Ram and Ors., (2004) 2 AWC 1305, has held that in determination of marker value of land, the rate of smaller area in exemplar is not safe guide for determining the market value of large area of land acquired. This case is also an authority for the proposition that the Government Orders which direct that the exemplar sale deeds of the highest value should be treated as the basis for determination of market value cannot be taken into consideration. These Government Orders have no statutory force and in fact they were subsequently withdrawn. The Court has to apply its own mind for determining the valuation and it cannot be held to be bound by the Government Orders.
8. In the above legal background that facts of the present case have to be examined. The claimants produced two witnesses namely Mewa Lal PW-1 and Punna Lal PW-2. Both these witnesses supported the case of the claimant respondents. The PW-1 Mcwa Lal who is also one of the claimants, has stated that the land acquired was Bhumidhari and irrigated land. He had installed a tube well after taking a loan from the Land Development Bank (Bhumi Vikas Bank). Three crops were being sown in the disputed land. The disputed land is 50 meters away from the .Kausharnbi Road, There are Hospitals, five Schools, Post Office, Bank and Shanti Nagar Colony Society. A Gas Plant of Indian Oil Corporation is towards the North side of the road. Near the vicinity of the land in dispute there is a concrete slipper plant of the Railway and the Subedarganj Railway Station is at a distance of about half kilometer. The Bamhrauli Airport is at a distance of one kilometer. G.T. Road is at abut half to 3/4th Kilometer from the land in dispute. The witness has given out the above potential value of the land in his examination- in-chiei. It appears from the statement that there was not much cross-examination by the appellant on the above points. In the cross-examination the witness has stated that the land in dispute is ancestral property and is adjacent to ahadi. Some part of the plot No. 211 was sold by him in the year 1985 for the residential purposes at the rate of Rs. 8,000/- per biswa. He deposed in the cross-examination that the sale deed executed by Shitla Prasad on which much reliance was placed by the claimants is at about 30 meters from the land in dispute. There arc only two agricultural plots in between his plots and the plot of Shitla Prasad sold by him. He has admitted that his land is six inch below the level of the Kaushambi Road. On the same lines his witness Punna Lal PW-2 also deposed.
9. As against the aforesaid oral depositions produced by the claimant respondents, the appellant produced Shri Ravi Khare DW-2, a Junior Engineer of the Allahabad Development Authority. He has stated that the land of the claimants was uneven and was below three feet below than the level of the Kaushambi Road. This fact is recorded in the map, In the examination-in-chief he has stated that no facility of electricity, water connection etc. were available at the time of his inspection of the disputed land. He could not find out any abadi, market or bus stand. However, in the cross-examination he has to admit that the plant of Indian Oil Corporation is in existence even since prior to the acquisition of the land in question. The Kaushambi Road is about 350 yards away from the land in question and the G.T. Road is about two kilometers. In the cross-examination he has admitted that five acres land were given to the Indian Oil Corporation for construction of residential colony. Although he stated that he has not seen the documents in the registry office regarding the agreement of sale deed, if any, for taking away the earth out of the plot in dispute but denied the suggestions that the earth was not removed for the purposes of manufacturing bricks by the brick kiln owner. He has further admitted that there is a militrary form near the disputed land and denied the existence of electric sub-station near the land in question. The existence of Bazar and Schools near the disputed land has been admitted, but that of hospital has been denied.
10. The Reference Court on the basis of the aforesaid evidence has rightly come to the conclusion that the land acquired was in a developed area and had potentiality for residential and commercial purposes. This finding was not seriously challenged by the learned Counsel for the appellant. A feeble attempt was made by him that from the statement of the DW-2 it is clear that earth was removed for brick kiln purposes for manufacturing bricks. He could not press this point further as no such plea was raised in the written statement by the appellant. The only paragraph which could support the aforesaid contention is paragraph No. 11 of the written statement. It says that there is no source of irrigation and the land in question is unproductive and total rough. The said plea is hardly sufficient to support the plea that the earth of the land in question was taken away for the purpose of brick kiln and its level was three meters below the level of Kaushambi Road. In absence of pleading on this fact reliance can be placed on this part of the statement of DW-2. There is another reason for not giving much weight to the statement of the DW-2. The DW-2 has given the statement on the basis of his alleged inspection in the month of July, 1988. The statement was recorded on 17th March, 1993. The witness gave the statement on the basis of memory. No inspection note was prepared by him. At least no inspection memo has been filed by him in the case. Therefore, the statement of the DW-2 is of little consequence.
11. Now I venture to determine the market value of the land acquired in the light of the exemplar namely the sale deed of the year 1983 executed by Shitla Prasad, paper No. 27-C. The sale deed paper No. 27-C is with respect to the plot No. 86 of the same village Jhalwa and is of the year 1983 and in respect to two and half biswas of land. The selling rate comes to Rs. 3,500/- per biswa. The relevant date for determination of the market value of the land in question is 6th of February, 1987, the date of notification Under Section 4 of the Land Acquisition Act. The total area of the land in question is 6 bighas 11 biswas and 11 dhoors of plot No. 198 and 5 biswas of plot No. 200. The total area of both the plots comes to 6 bighas 16 biswas and 11 dhoors. The Court below has awarded compensation at the rate of Rs. 3 500/t per biswa taking the sale deed of Shitla Prasad as the basis for determination of the market value of the land in question but refuses to make any deduction on account of the smallness of the area involved in the exemplar and the largeness of the area of the disputed land in view of the latter dated 4.6.1988 issued by the Director (Land Acquisition), Directorate, Revenue Board, Lucknow. In the said letter it has been mentioned that no deduction should be made on account of the largeness of the area acquired provided the acquired land of a tenure holder does not exceed 8 acres. The said letter has got no relevancy when the question falls before a Court for determination of the market value of the land Under Section 23 of the Land Acquisition Act. This is at the most an administrative instruction to the Special Land Acquisition Officer and has no statutory force. The law declared by the Supreme Court is law of the land and binding on all Courts under Article 141 of the Constitution of India. The Supreme Court has laid down in numerous cases that the prices fetched for small plots cannot be directly applied in the case of large areas, for the reasons that the former reflect the "retail price" of land and latter the "wholesale price". Therefore, this part of the judgment of the Court below for not making deduction on account of the largeness of the area of the claimant respondents and taking the sale deed paper No, 27-C which is with respect of only a very small piece of land cannot be legally justified, in view of the law laid down by Supreme Court.
12. At this stage the learned Counsel for the claimant-respondents submitted that the sale deed of Shitla Prasad Paper No. 27-C is of the .year 1983. The Court is required to determine the market value of the land as on 6th February, 1987. There is a time gap of about 4 years. There has been price escalation of the land during this period. A judicial notice of increase in value of land at the rate of 15% per year should be taken into account. The Court below in its judgment has made a sweeping remark that naturally the prices of land have increased during the period 1983 to 1987. On deeper probing it is difficult to find any evidence on record to show that there has been price escalation during this period. The PW-1 who is one of the claimants has not said even a word of this point in his deposition. The learned Counsel for the respondents has placed reliance on the two judgments of the Supreme Court, (1) Hindustan Oil Mills v. Special Deputy Collector (Land Acquisition), AIR 1990 SC 731 and (2) Krishi Utpadan Mandi Samiti v. Bipin Kumar and Anr., (2004) 2 SCC 283. In para 8 of Krishi Utpadan Mandi Samiti judgment the Supreme Court has approved the increase in price of 15 per cent per annum given by the High Court. In para 4 of the report the relevant portion of the judgment of the High Court is quoted. It is mentioned therein that it is a matter of common experience that price of land is soaring high due to the development of the country and also due to the exploitation of the population, 15% per annum was accepted as the rate of increase of price of the land by the High Court- This was held by the Supreme Court not to be unreasonable.
13. In reply the appellant submitted that a judgment of the Supreme Court should not be read as a Statute. There is no dispute to this proposition. But as approved by the Supreme Court a judicial notice of 15% per annum increase in the market value of the land can be taken. On one hand an appropriate deduction has to be made to ascertain the market price of the land in question on account of largeness of the area. No hard and fast Rule with regard to the percentage of deduction can be made out. Since the land acquired had great potential value. It is near the vicinity of the plot No. 86, The sale deed of plot No. 86 (paper No. 27-C) was executed by Shitla Prasad. It is appropriate to order a deduction of 50% from the price as mentioned in the sale deed. The area of the land acquired (six bighas sixteen biswas and eleven dhoors) is equivalent to 136 biswas and 11 dhoors. The area of the comparable sale deed is only two and half biswas. Thus, the area of the acquired land is more than 54 times larger than the area of exemplar sale deed.
14. The market price of the land in question in the year 1983 thus comes to Rs. 1750/- per biswa. The increase of price at the rate of 15% (per biswa) per annum for the period of four years will come to Rs. 1750/- plus Rs. 1056/- (60% of Rs. 1750/-), i.e. Rs. 2816/- per biswa. Let it should be taken at a round figure of Rs. 2800/- per biswa. This is the fair market price of the land in question on the date of notification. Thus, the compensation for the land in dispute ought to have been awarded to the claimant-respondents at the rate of Rs. 2800/- per biswa.
15. In view of the above finding the cross-objection for further enhancement of the price of the land in question being not sustainable is rejected. However, it may be noticed that the learned Counsel for the claimant-respondents pressed only grounds No. 1 and 4 in support of the cross-objection. But, the judgment of another reference No. 83 of 1991, Ram Suchit and Ors. v. State of U.P., on the basis of which enhancement of compensation was claimed, has not been filed on the record till the date of liearing of the appeal. Therefore, inevitable conclusion is that the appeal is on a terra-firma and there is no merit in the cross-objection.
16. In the result the appeal is allowed in part. The cross-objection is dismissed. The claimant-respondents are entitled for compensation at a price of Rs. 2,800/- per biswa. They arc also entitled for other statutory benefits as ordered by the Court below in accordance with law.
17. The appeal is allowed in part as indicated above. No order as to costs.