Hon'ble Ram Autar Singh,J.
A.F.R. Reserved First Appeal No.102 of 2000 Bulandshahr Khurja Development Authority ----------Appellant Vs.
Ajai Kumar ----------------Respondent And First Appeal No.103 of 2000 Bulandshahr Khurja Development Authority ----------Appellant Vs.
Arvind Kumar ----------------Respondent Hon. Prakash Chandra Verma, J.
Hon. Ram Autar Singh, J.
(Delivered by Hon. R.A.Singh,J.
1. These First Appeals have been directed against common judgment/award dated 29.4.1995 passed by learned District Judge, Bulandshahr in L.A.R. No.169 of 1992 (Ajai Kumar Vs. State of U.P. and others) and L. A.R. No.168 of 1992 (Arvind Kumar Vs. State of U.P. and others), whereby the references have been allowed and market rate of the land acquired has been determined at Rs.350/ per sq. yard.
2. Earlier these appeals were decided by Division Bench of this Court vide judgment and order dated 20.4.2004; which is reproduced below:
?Heard learned counsel for the parties.
In view of the judgment and order dated 31.3.2004 passed by the Division Bench of this Court in First Appeal No.386 of 1992, this appeal is allowed in the terms and conditions as given in the above judgment.
The impugned judgment is hereby set aside.?
3. A perusal of record goes to show that the Division Bench in First Appeal No.386 of 1992 held as under:
?Heard learned counsel for the parties.
This First Appeal has been filed against the judgment of the court below in a reference under Section 18 of the Land Acquisition Act.
Sri Bhupeshwar Dayal, learned counsel for the appellant has stated that the land acquired was of area 3,00,000 square yard whereas the exemplar relied on is only of about 100 square yard.
Hence in view of the judgment of this Court in First Appeal No.522 of 1993, Krishi Utpadan Mandi Samiti vs. Khushi Ram and others decided on 26.2.2004, we set aside the impugned judgment and remand the matter to the court below for a fresh decision in accordance with law expeditiously.
Since the matter is being remanded to the court below certificate shall be granted under Section 13 of the Court Fee Act for the refund of the Court Fee on the memo of appeal vide Chandra Bhushan Mishra vs. Smt. Jayatri Devi, A.I.R. 1969 Alld. 142, which has been affirmed by the Supreme Court in State of U.P. vs. Chandra Bhushan, A.I.R. 1980 S.C. 591.
Appeal is allowed.?
4. Being aggrieved by the above judgments and orders, the respondents preferred Civil Appeal No.2218 of 2006 (arising out of S.L.P. (C) 19955 of 2004) and Civil Appeal No.2219 of 2006 (arising out of S.L.P. (C) 24618 of 2004), which were decided by the Hon'ble Apex Court on 24.4.2006 by following judgment:
?Leave granted.
Heard counsel for the parties.
Counsel appearing for the respondents fairly states that the impugned order be set aside and the case remitted back to the High Court for a fresh decision in accordance with law. Ordered accordingly. The High Court shall proceed with the First Appeals and decide them afresh in accordance with law. Since the proceedings relate to the year 1989, we would request the High Court to take up the appeals on priority basis and dispose them off as expeditiously as possible, preferably within a period of six months from the date of receipt of a copy of this order.
The appeals are allowed accordingly with no order as to costs.?
5. The brief facts emerging out of the case are that the land of Khata No.370 area 4-6-6 bigha of respondent Arvind Kumar and Khata No.367 area 0-13-19 bigha, No. 368 area 0-15-9 bigha and No.389 area 0-6-5 bigha of respondent Ajai Kumar situated in village Akbarpur and Bhoor Crossing, District Bulandshahr was acquired for Bulandshahr Khurja Development Authority by Notification No.7299/11-5-1988-83. LA/88 Lucknow dated 20.12.1988 under section 4(1) of Land Acquisition Act 1894 (hereinafter referred to as 'Act') for promotion of residential and commercial scheme known as ?Yamunaporam?, in respect thereof an award under section 11 of the Act was made by Special Land Acquisition Officer, Bulandshahr on 4.4.1991 offering compensation to the claimants at the rate of Rs.100/- per sq. yard for the land of first belt, Rs.50/- per sq. yard for land of second belt and Rs.29/- per sq. yard for the land of third belt.
6. The respondent-claimants feeling aggrieved by the award, moved an application before the Collector under section 18 of the Act for making reference to the Court and thereupon the Collector made reference to the court of District Judge, Bulandshahr. It was alleged in the said application that the Special Land Acquisition Officer did not consider the utility, potentiality and situation of land for the purpose of determination of compensation. The Court in turn enhanced the rate of market value of land at Rs.350/- per square yard.
7. The respondents have alleged in their applications under section 18 of the Act that the acquired land lies in the area of Bulandshahr Municipal Board and situated towards north of G.T. Road, within the limit of National Capital Region. It has also been alleged that the land acquired is potential for residential and commercial purposes as the land nearby the same is already developed as well as the number of residential colonies and industrial units have come into existence. The colonies nearby land acquired have been raised with the approval of Bulandshahr Khurja Development Authority. The acquired land is just adjacent to Bhoor Crossing where at the hotels, shops, nursing homes, factories, P.W.D. Inspection House, the residences of officers and other buildings have come into existence. The exemplar relied in the award was of very low rate and it did not depict the real and correct market value of the land. The Special Land Acquisition Officer failed to prepare comparative chart of sale deeds for the purpose of determination of correct market value of the land acquired.
8. The appellant-opposite parties have alleged in their composite written statement that the land acquired in the said references is agricultural in nature and the compensation has been awarded after assessing the market value of the land of nearby places and the same has been declared after affording the opportunity of hearing and thus the respondents are not entitled to get the enhanced amount of compensation, because the compensation has been assessed by Special Land Acquisition Officer on the basis of geographical situation and utility of land and best price of the land has been paid to them. The respondents have received the amount of compensation without protest and the reference is barred by principle of estoppel and acquiescence.
9. The court below framed four issues relating to inadequacy of compensation in the references. The respondents examined P.W.1 Arvind Kumar and P.W.2 Kishan Singh and filed documentary evidence in support of their claim. The appellant examined D.W.1 Manoj Kumar and D.W. 2 Dhara Singh in rebuttal. The court below decided both references alongwith other references simultaneously by a common judgment and award dated 29.4.1995 holding that the respondents would be entitled to get compensation of their land acquired by State Government at the rate of Rs.350/- per sq. yard alongwith all statutory benefits, being aggrieved by which, the appellant filed these appeals.
10. We have heard Shri Bhupeshwar Dayal, learned counsel for appellant and Shri D.K. Misra appearing for respondents on these appeals and carefully examined the evidence on record. Some documentary evidence under Order 41 Rule 27 of C.P.C. has also been filed by the parties in these appeals before this Court.
11. P.W.1 Arvind Kumar and P.W. 2 Kishan Singh have stated that the land in dispute has been acquired by State for Bulandshahr Khurja Development Authority and the compensation determined by Special Land Acquisition Officer has been received by the respondents under protest. They have also stated that the quality of the land is very good having residential and commercial potentiality as it is situated adjacent to Aligarh- Delhi G.T. Road and within the limit of Bulandshahr Municipal Board as well as within the area of National Capital Region. The number of factories, Kothies, Police Station, Schools have come into existence nearby the land acquired and towards another side of the said land, residential colonies, namely, Shiva Pallava Vihar, Sushila Vihar, R.K. Puram etc have been developed and at the time of acquisition the rate of land was not less than Rs.1000/- per sq. yard, but this aspect was not considered by Special Land Acquisition Officer.
12. The learned counsel for the respondents has contended that the compensation of the land acquired through same notification has been awarded at the rate of Rs, 350/- per sq. yard by the reference court in L.A.R. Nos.5 of 1992 and 563 of 1991 and the compensation at the rate of Rs.400/- per sq. yard has also been awarded in L.A.R. No.480 of 1991. The copies of some sale deeds relating to the land of the same locality have also been filed by respondents before this court, which have been executed at much higher rates and the Bulandshahr Khurja Development Authority has sold the land acquired through the same notification at the rate of Rs.900/- to Rs.1200/- per sq. meter.
13. D.W.1 Manoj Kumar, Amin and D.W.2 Dhara Singh, Lekhpal indicating the date of notification under section 4(1) of the Land Acquisition Act as 20.12.1988 have stated that the possession over the land acquired was taken over on 19.5.1989 as well as the award was declared by Special Land Acquisition Officer on 4.4.1991. They have further stated that the sale deeds at serial nos. 84 and 91 out of those summoned from the office of Sub-Registrar were made exemplars according to which the land measuring 200 sq. yard was sold by Ashok Kumar out of his Gata No.386 measuring 10-17-12 bighas.
14. These witnesses have categorically admitted in their evidence that the land acquired lies within the limit of Bulandshahr Municipal Board and the compensation of the land acquired from Gata no. 386 has been awarded at the rate of Rs.400/- per sq. yard by the court below. They have also admitted that the compensation has been awarded by the reference court in other reference cases at the rate of Rs.350/- per sq. yard. They continued to state that the sale deed at serial no.107 was executed at the rate of Rs.400/- per sq. yard and the land in this reference was acquired for residential and commercial purpose which is situated at the distance of 100 yards away from Aligarh- Delhi G.T.Road and within the area of National Capital Region.
15. The learned counsel for respondents vehemently contended that both parties adduced their evidence in reference court which determined the rate of market value of the land acquired in these references on the basis of evidence on record, but the Special Land Acquisition Officer failed to consider the sale deeds of higher valuable on record.
16. The reliance has been placed on decision in Smt. Kasturi Devi Vs. Collector, Nainital reported in A.I.R. 1987 Alld. 338, wherein it has been observed that the sale deeds of higher valuation available before the Special Land Acquisition Officer should have been considered for the purpose of determination of correct market value and if he does not consider and make those sale deeds basis for determination of correct market value of the acquired land, the reference is liable to be allowed in favour of the claimants.
17. Shri Bhupeshwar Dayal, learned counsel for the appellant advanced his argument that the reference court committed error in discarding the exemplars relied upon by the appellant, while the Special Land Acquisition Officer considered the entire case and the exemplars available on record and he paid best price of the land to the claimants, which they received without any protest and thus the references were barred by principle of estoppel and acquiescence. Repelling this argument the learned counsel for respondents contended that the claimants categorically stated that the amount of compensation was received by them under protest.
18. The learned counsel for respondents has vehemently contended that mere filing of the application for making reference under section 18 of the Act is sufficient to show the grievance of the claimants about the amount of compensation. The reliance has been placed on decision in Ajit Singh Vs. State of Punjab and others reported in 1994 S.C.C. 69 , wherein the Hon'ble Apex Court has observed that in case the claimant has received the amount of compensation under protest and the issues have been decided in his favour in the impugned judgment of the reference court, in which correct market value of the acquired land has been determined, the principle of estoppel and acquiescence does not apply to such case.
19. A perusal of record goes to show that the court below has recorded finding to the effect that the witnesses of the claimants stated that they were paid inadequate compensation and the Special Land Acquisition Officer failed to afford the opportunity to the respondents of hearing and lead evidence, as a result of which the applications under section 18 of Act were moved by them before the Special Land Acquisition Officer/Collector.
20. The learned counsel for the appellant contended for allowing these appeals and remanding the references to the court below for decision afresh. Shri D.K. Mishra, learned counsel for the respondents vehemently opposed this contention on the ground that these appeals have already been remanded by the Hon'ble Apex Court vide judgment and order dated 24.4.2006 passed in Civil Appeals No.2217 and 2218 of 2006 by quashing the judgment and order dated 20.4.2004 passed by this Court with the direction that this Court shall proceed with these first appeals and decide the same afresh in accordance with law.
21. The learned counsel for respondents further submitted that the appellant had full notice and knowledge of the proceedings of L.A.R. Nos. 168 and 169 of 1992 as well as connected cases which were decided by the reference court by a common judgment and order dated 29.4.1995. He has further contended that the appellant having filed written statement on its behalf in L.A.Rs. giving rise to these first appeals, is not entitled to contend that it was not party to the said references and no adequate opportunity was afforded to the appellant.
22. The learned counsel for the respondents has placed reliance on decision of Hon'ble Apex Court in Rishi Pal Singh and others Vs. Meerut Development Authority, reported in 2006 (3) S.C.C. 205 and submitted that in these appeals being first appeals, this Court should examine the impugned judgment and material on record instead of remanding the matter to the reference court. We agree with this argument of learned counsel that no useful purpose would be served in remanding the case to the court below for decision afresh, as the evidence adduced by both parties is found on record.
23. The learned counsel for the respondents again contended that after considering the submissions made by the appellant in its written statement and oral and documentary evidence adduced on its behalf in support of its case, the reference court passed the impugned judgment and award as well as rightly assessed the market value of the land acquired.
24. The learned counsel for the appellant vehemently contended that the rate of the land under acquisition was rightly determined by Special Land Acquisition Officer, Bulandshahr. He further contended that though specific reasons for excluding the sale deed dated 2.7.1988 was recorded by Special Land Acquisition Officer, yet the reference court placed reliance upon the said sale deed and treated the same to be relevant exemplar for assessing the market rate without meeting out the reasonings recorded by the Special Land Acquisition Officer. He also contended that the court below caused injustice in allowing the references without affording opportunity to the appellant. He again contended that more than 90 references under section 18 of the Act against the same notification were sent and all of them were decided by the reference court, while some references were clubbed together and decided by different judgment without impleading the appellant as party therein.
25. The learned counsel for the respondents contended that the appellant filed an application for additional evidence in reference court, which was allowed and the appellant was afforded an opportunity to lead evidence. The respondents filed counter affidavit alognwith Annexure C.A.-1 and submitted that in identical case the appellant accepted similar order of reference court and made payment of compensation to the tenure holders. The appellant is thus not entitled to get rid of doctrine of res-judicata.
26. The learned counsel for the respondents further contended that minimum circle rate of the land of that area as notified by the District Magistrate, Bulandshahr at the time of acquisition was Rs.440/- per sq. yard as evident from the record. The whole acquired land lies within the limit of Municipal Board and National Capital Region and that nearby the acquired land, the hotel and number of shops have come into existence and the reference court considered this aspect and the documents filed by the parties. The appellant also filed written statement as well as oral and documentary evidence in support of its case.
27. The reliance has been placed by learned counsel for the respondents on decision of Full Bench of Hon'ble Apex Court in Revenue Divisional Office-Cum L.A.O. Vs. Sheikh Azad Saheb etc, reported in 2009(2) U.P.L.B.E.C. 1118, wherein it has been observed that in determining the market value of the land, large number of factors are required to be kept in mind, i.e. quality, location, closeness thereof from any road, highways or city.
28. We have found from the record of this case that it was proved on the basis of evidence adduced on behalf of the parties that the acquired land of the claimants was having residential and commercial potentiality as it was well within the limit of Municipal Board and situated adjacent to Aligarh - Delhi G.T. Road as well as within the limit of National Capital Region, and just nearby acquired land, the number of factories, police station and schools were existing, but Special Land Acquisition Officer failed to consider these important factors and he passed the award of compensation at very low rate. The learned reference court, after having considered oral and documentary evidence produced by both parties, passed the impugned judgment enhancing the rate of market value.
29. In our opinion there is no infirmity in the impugned judgment passed by the reference court. The land of the claimants was acquired for the appellant for the purpose of residential and commercial under the provisions of Act. The acquired land is well within Bulandshahr, Municipal Board area and the same is very adjacent to Aligarh ? Delhi G.T. Road and the whole acquired land lies within the limit of National Capital Region. These facts have not been denied by the appellant.
30. From perusal of record it is crystal clear that the circle rate of the land in question fixed by the District Magistrate, Bulandshahr was Rs.440/- per sq. yard at the relevant time. The compensation for the land of plot no. 386 has been awarded at the rate of Rs.400/- per sq. yard. D.W.1 Manoj Kumar has admitted that in other cases too the compensation of the land of the same locality has been awarded by the reference court at the rate of Rs.350/- per sq. yard. He has further admitted that the sale deed at serial no.107 was executed at the rate of Rs.400/- per sq. yard. The counter affidavit has also been filed by the respondents annexing the copies of execution orders, which indicate that in number of similar awards, relating to the same acquisition full and final payment has been made by the appellant. Thus the respondents are also entitled to get the benefit of parity for compensation awarded by the reference court.
31. It is abundantly clear from the record that the sale deeds of higher valuation of the land adjoining the land in question were available before Special Land Acquisition Officer, which he failed to consider in determining the correct market value of the acquired land. Both the parties have produced oral and documentary evidence before the court below which after hearing the parties at length passed the impugned order, which is liable to be confirmed in the light of evidence on record and submissions made by learned counsel for the parties as well as in the light of judgment of the Hon'ble Apex Court in Revenue Divisional Office-Cum L.A.O. Vs. Sheikh Azad Saheb etc, reported in 2009(2 U.P.L.B.E.C. 1118.
32. In above case it has been observed that determination of market value of the land acquired in terms of the provisions of the Act depends upon a large number of factors which are required to be kept in mind. Some of these factors are nature of land, its quality, location, closeness from any road, highways or city. In our view the facts of the present case are squarely covered by the above judgment of Hon'ble Apex Court. The land of the claimants was acquired for Bulandshahr Khurja Development Authority for residential and commercial purposes and the same was well within the limit of Municipal Board and adjacent to Aligarh ? Delhi G.T. Road and it was within the area of National Capital Region. In the vicinity of acquired land there were number of factories, hotels, police station, nursing homes, and schools etc and as such it had residential and commercial potentiality.
33. The circle rate of the area of village Akbarpur and Bhoor Crossing was fixed by the District Magistrate at Rs.440/- per sq. yard at the time of acquisition of the land. The compensation for the land of plot no.386 adjoining the land in question was also awarded at the rate of Rs.400/- per sq. yard by the reference court. The evidence on record is indicative of the fact that in other cases relating to the same notification with regard to adjoining land, the compensation was awarded by the reference court at the rate of Rs.350/- per sq. yard. D.W.1 Manoj Kumar, Amin of Special Land Acquisition Officer categorically admitted that the sale deed at serial no.107 in respect of the land of the same locality was executed at the rate of Rs.400/- per sq. yard. Thus the sale deeds of higher valuation of adjoining area were available and the acquired land was potential for residential and commercial purposes, but the Special Land Acquisition Officer did not consider these important factors.
34. The reliance has been placed on behalf of the respondents on decision in Bhopendra Singh and others Vs. Awas Vikas Parishad and others reported in 2005 (2) U.D. 295, wherein the Division Bench of High Court of Uttranchal, presided over by one of us (Hon'ble P.C. Verma, J) has observed that it would be injustice to the owner of the land if for realizing the stamp duty, we either apply the circle rate and deny at least the said rate in making payment of compensation on acquisition of his land. The circle rate is not always the correct market value of the land and the parties are at liberty to show by means of a exemplar sale deed, the market value to be higher than the circle rate, but simultaneously, it is true that the government, on one hand cannot charge stamp duty treating particular market value at circle rate and deny the same for making payment of compensation on acquisition of his land and therefore, market rate shown in the form of circle rate cannot be discarded, while assessing the market value of the land for the purpose of calculating the compensation of the land acquired.
35. In the present case, it is evident from the record that the District Magistrate fixed the circle rate of the land of the said locality including the land acquired, at Rs.440/- per sq. yard, and the sale deed at serial no.107 relating to the land of same vicinity as admitted by the defence witnesses, was executed at the rate of Rs.400/- per sq. yard. It is also clear from the annexure to counter affidavit filed in this appeal that in similar situation against similar award, as passed by the reference court, full and final payment has been made by the appellant to the land loosers.
36. The respondents were aggrieved party against the award passed by Special Land Acquisition Officer, as result of which, they moved applications under section 18 of the Land Acquisition Act, which were decided by the reference court on various grounds. The awards passed Special Land Acquisition Officer have been vehemently opposed by the respondents on the basis of judgment in Ajit Singh Vs. State of Punjab and others reported in 1994 S.C.C. 69 , wherein the Hon'ble Apex Court has held that mere filing of the application under section 18 of the Act is sufficient to show dissatisfaction of the claimants about the amount of the compensation and that would manifest their intention. Therefore, the protest against the award of Collector is employed notwithstanding the acceptance of compensation. In our view the above law as relied by reference court is fully applicable to the claim of the respondents and the objections raised by the appellant in reference court are of no significance. Thus the reference court has rightly entertained the reference application of respondents under the Act.
37. In view of above discussions, we are of considered opinion that no interference is required in the judgment and award dated 29.4.1995 passed by the Reference Court, Bulandshahr. These first appeals, being devoid of merit, are liable to be dismissed. Consequently, these first appeals are dismissed with the direction to the concerned authority to make payment of balance amount to the respondents with all consequential statutory benefits within a period of one month.
Order Date :- 9.9.2010 RU