JUDGMENT S.U. Khan, J.
1. Notifications under Sections 4 and 6 of Land Acquisition Act, 1894 (for short the Act) were issued on 20.8.1982 and 21.8.1982 respectively and published in Gazette on 23.8.1982 for acquiring 192 bighas, 10 biswas and 6 biswansies of land situate in village Kakrala, Pargana Bhokarheri, Tehsil Jansath, district Muzaffarnagar for establishing the Ganga Kisan Sahkari Chini Mills Ltd., Morana, Muzaffarnagar, the appellant in these appeals. The land of private respondents in all these appeals was included in the aforesaid notifications.
2. The Special Land Acquisition Officer, Muzaffarnagar, (S.L.O, in short), by his award dated 18.4.1983, passed in Case No. 4 of 1982 determined the market value of the acquired land on the date of notification under Section 4 of the Act to be Rs. 9,944.57 paise per bigha pakka of the land of the quality of awwal torh and Rs. 8,523.81 paise per bigha pakka of doyam torh quality of land (none of the aforesaid appeals relate to doyam torh quality land). On reference, the two learned Additional District Judges who decided the reference determined the market value of the awwal torh quality land on the relevant date as Rs. 19,000 per bigha pakka. Some reference were decided by Sri Yad Ram, IXth Additional District Judge, Muzaffarnagar, on 28.4.1990 by separate but similar judgments and some were decided by Sri K. Chandra, Xth Additional District Judge, Muzaffarnagar, on 31.5.1990 by separate but similar judgments. The later judgments are almost on the similar lines as the earlier judgments. The following table gives the details of all the claimants (which term includes the legal representatives of the claimants wherever applicable), Khasra number, area of their acquired land, Land Acquisition Reference (L.A.R. in short) number and corresponding first appeal number :
F. A. No. L.A.R. No. Name of the claimant Khasra No. Area Blgha Biswa Biswanl 1250/90 197/89 Ghaslta 390 & 392 19 6 --
1251/90 198/89 Jai Chand 395 20 9 15 1252/90 202/89 Bhanwar Singh 399 & 400 11 1 3 1253/90 201/89 Karan Singh 319 16 5 5 1254/90 199/89 Harbansh 331, 337 18
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4. S.L.O. after going through the sale deeds of the village in question executed within three years from the date of notification under Section 4 of the Act came to the conclusion that the sale deed executed on 12.2.1981, with regard to an area of 5 bighas, 8 biswas and 5 biswansies, situate in the same village would be best exemplar for determining the market value of the acquired land on the relevant date.
5. On the contrary, reference court held that more appropriate exemplar would be the sale deed executed on 6.1.1982 with regard to a piece of land having an area of one bigha, 17 biswas situate in the adjoining village Kishanpur and adjacent to the land in dispute. The reference court preferred the sale deed of 1982 over the sale deed of 1981 on the ground of proximity of time and distance. The reference court held that the land covered by 1981 deed, was far away from the acquired land, as one was situate at one corner of the village and the other on the other corner of the village and the distance between the two was substantial.
6. The First Appeal No. 602 of 2000 was filed in the year 1990 without payment of full court fee, hence it was numbered as defective appeal (F. A. No. 650 of 1990). Later on deficiency in court fee was made good in August, 2000 and thereafter it was registered as First Appeal No. 602 of 2000, which has yet not been admitted.
The said appeal (First Appeal No. 602 of 2000) is hereby admitted and is being finally disposed of by this judgment.
7. Copy of the S.L.O's. award dated 18.4.1983 available in the records of these appeals and of courts below, was not complete inasmuch as it did not contain the annexures mentioned therein. Learned counsel for both the parties were directed to file the complete certified copy of award. Both the learned counsel for the parties have filed complete copy of the award which is taken on record.
8. Heard learned counsel for the parties.
9. The reference court rejected the contention of the claimants with regard to residential potential of the acquired land. No argument has been raised by the learned counsel for the respondent against the said findings.
10. The appellant before the reference court filed certified copies of some sale deeds through which the land had been sold at lesser rate than awarded by S.L.O. The reference court refused to place reliance upon those deeds on the ground that the rate on which the land was sold through the said sale deeds was less than the rate awarded by S.L.O. Learned counsel for the appellant has contended that approach of the reference court was not correct. In my opinion, the contention of the learned counsel for the appellant has got some force. While determining the compensation, the reference court should take into consideration the evidence particularly in the form of sale deeds adduced by both the parties. It cannot reject a sale deed merely on the ground that rate of market value shown therein is less than the rate awarded by S.L.O. Such sale deeds are also relevant and should be taken into account in order to arrive at the correct market value with the rider that the reference court can, in no case, award lesser compensation than awarded by the S.L.O. The acquiring agency or the body for which the land has been acquired, can very well show before the reference court that market value of the acquired land is less than the market value awarded by S.L.O., hence award given by S.L.O., requires no interference by the reference court. There may be one other possibility, i.e., S.L.O., after taking into consideration, various sale deeds showing various rates of land may adopt the formula of average in determining the market, value. In such a situation, the reference court cannot discard from consideration the sale deeds of lesser market value than awarded by S.L.O. In any case, as stated earlier, reference court has to take into consideration the entire evidence on record before arriving at the rate of market value at the relevant date.
11. However, the above error committed by the reference court does not vitiate its findings for the reason that the sale deeds, relied upon by the appellant, are to be rejected for that very reason which prevailed upon the S.L.O. The S.L.O. rejected those sale deeds on the ground that the land covered by the sale deeds, was of inferior quality than the quality of the acquired land. Much emphasis has been laid by the learned counsel for the appellant, on the sale deed dated 4.1.1982, executed by Vishambhar in favour of Satya Pal and Ors. whereby 2 bighas, 7 biswas and 19 biswansies of the land was sold for Rs. 14,000. In the award of S.L.O., the said deed is mentioned at Serial No. 29 in Annexure-2 to the award and has been rejected on the ground that maximum land of the said sale deed is awwal khakhi which is different from the quality of the acquired land. Copy of the said sale deed is at page 122 in the paper book, prepared in First Appeal No. 1250 of 1990. Perusal of the said sale deed shows that Vishambhar sold half of the land to Sri Satya Pal and half of the land to Sri Rishi Pal, Atma Ram and Sahandar, minor under the guardianship of real brother Rishi Pal, all three being sons of Vishambhar. From the said description, it appears that Vishambhar sold half of the land to Satya Pal and half of the land was retained by him in the names of his sons. Probably, it was done to avoid the bar against transfer of fragment of agricultural land. In any case, the quality of the land covered by the said sale deed being inferior to the quality of the acquired land as is the case, in other sale deeds adduced in evidence by the appellant, it cannot serve as an exemplar for determining the market value of the acquired land.
12. Next point of the learned counsel for the appellant is that the sale deed of land of another village even though adjacent cannot be taken into consideration particularly when the sale deeds of the village, where acquired land is situate, are available. In this regard, the learned counsel has placed reliance upon an authority of Supreme Court in Kanwar Singh v. Union of India, 1999 (1) AWC 784 (SC) : AIR 1999 SC 317, Supreme Court was dealing with acquisition of land of a village of Delhi. High Court while refusing to place reliance upon the award given with regard to the adjoining village had recorded finding that situation and potential of the land situate in two villages were different. Supreme Court agreed with the High Court that the market value of the land in the adjoining village cannot be taken into consideration unless situation and potentiality of the land in both the villages are the same and sale instance of the village in question is available. The Supreme Court cautioned that if the theory of same value as in the adjoining village was adopted, then the land of entire Delhi may have the same value as village A may be adjoining to village B, village B to village C and to village D and so on.
13. In the aforesaid case, the award of the adjoining village had been earlier approved by the High Court due to the negligence of learned counsel for the State/the body for which the land was acquired as during the hearing of the appeal, the award was not challenged on merit even though full court fees had been paid. Para 9 of the judgment is quoted below :
"The contention of appellants' counsel that appellants deserved to be awarded the same rate of compensation as it was awarded to the claimants of village Masoodpur and Mahipalpur, in the present facts and circumstances of the case, is not tenable. If we go by the compensation awarded to claimants of adjoining village it would not lead to the correct assessment of market value of the land acquired in the village, Rangpuri. For example village 'A', adjoins village 'B', village 'B' adjoins village 'C', village 'C' adjoins village 'D', so on and so forth and in that process the entire Delhi would be covered. Generally, there would be different situation and potentiality of the land situated in two different villages unless it is proved that the situation and potentiality of the land in two different villages are the same. The High Court in the present case, has found that the situation and potentiality of land in village Malikpur Khori are different than that of village Masoodpur. This finding of the High Court is based on correct appreciation of evidence on record and does not call for interference. Another reason why the High Court declined to rely upon the judgments referred to above was that the sale instances relating to village Malikpur Khori were available for determining the market value of the land acquired in village Malikpur Khori and as such there was no need to rely the judgments which related to acquired land of different villages. Yet another reason why the two judgments referred to by learned counsel for appellant cannot be relied upon for assessing the market value of acquired land in village Malikpur Khori was that R.F.A. No. 567 of 1990 filed by the Union of India relating to the grant of compensation in respect of land in village Masoodpur was dismissed summarily, as the only challenge in the appeal was in respect of grant of interest to the claimants which matter was already settled by the Supreme Court. In fact, the High Court had adversely commented upon the working of the Land Acquisition Department of Delhi Administration in not challenging the market value of the land acquired in village Masoodpur as assessed by the Additional District Judge, in Regular First Appeals although the court fee to that effect was paid. In this connection, it is relevant to reproduce the finding of the High Court, which runs as follows ;
"Before leaving the judgment, we are strained to make a few observations regarding the working of the Land Acquisition Department in Delhi Administration and contest of these appeals by the counsel for Union of India. Although an appeal filed by the Union of India against the judgment of the A.D.J. in L.A.C. 186 of 1991 is pending in this Court, this fact was not brought to our notice by the counsel for Union of India. This decision of the A.D.J. in L.A.C. 186 of 1981 has been substantially relied upon by another A.D.J. in L.A.C. 15 of 1981. When the appeal against the said decision of the A.D.J. in L.A.C. 15 of 1981 came before us (R.F.A, 567 of 1990) the only question pressed by the counsel for Union of India was in regard to the payment of interest after the amendment in the Land Acquisition Act in 1984. But when we found that the dismissal of the said appeal by the Division Bench was relied upon in R.F.A. 122 of 1978. Hoshiar Singh v. Union of India, we sent for the file. What is discovered on the file is shocking. The Union of India had purchased stamp worth Rs. 1,19,300. Obviously, the intention was to file an appeal against the quantum of compensation awarded by the A.D.J. However, the grounds of appeal mostly relate to the payment of interest in terms of the Amending Act of 1984. The appeal memo was drafted by Mr. Gulab Chandra, advocate, who also appeared before us in R.F.A. 5467 of 1990. Since the questions regarding payment of interest after the Amending Act of 1984 are now fully settled by the decisions of the Supreme Court and since, that was the only question argued before us by the counsel for the Union of India, the appeal was dismissed by us. We had not noticed at that stage that a stamp of Rs. 1,19,300 was affixed by the Union of India. This only discovered now. The purchase of stamp worth Rs. 1,19,300 would show that the claim would be over a crore of rupees. The claimants have been benefited because Union of India did not argue the matter on compensation. Apart from the lack of interest and inefficiency in the Land Acquisition matters on behalf of the Land Acquisition Department, these facts raise grave suspicion about the credibility of the working of the said department. We, therefore, direct that a copy of this judgment be sent to the Lt. Governor for appropriate action."
14. It is not clear from the above judgment whether acquired land had only agricultural potential or it had some urban potential, immediate or distant, also.
15. Urban lands (land having residential or commercial potential) situate in the adjoining villages particularly of Delhi may have vastly different market values. The market value of urban land may vary even at short distance, adjoining localities of a village, town or city may have quite different market value of urban, land. Even in the same locality market value of urban land may vary. This is not so in the case of agricultural land. Normally, the value of purely agricultural lands in adjoining areas, even if they are situate in different villages is either same or has got very little variance.
16. There is one more distinguishing feature in the instant case, i.e., that not only the land covered by the sale deed dated 6.1.1982 is situate in the adjoining village but it is actually adjacent to the land in dispute. In case, the said sale deed had been of a piece of land situate somewhere else in the adjoining village, then the same could not be relied upon.
17. It has been held by a Constitution Bench authority of the Supreme Court, in a case of P. Rao and Ors. v. State of T. N. and Ors., AIR 2002 SC 1334, in para 8A as follows :
"Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, and said Lord Morris in Herrington v. British Railways Board. (1972) 2 WLR 537. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases."
18. Net result is that the sale deed dated 12.2.1981 (relied upon by the S.L.O.) even though situate at some distance from the acquired land but being of the same village as well as the sale deed dated 6.1.1982 (relied upon by the reference court), even though situate in the adjoining village but being adjacent to the acquired land, both have to be taken into consideration, in order to arrive at the correct market value of the acquired land on the date of Section 4 notification of the Act. The sale deed dated 12.2.1981 was executed 18 months before the publication of notification under Section 4 of the Act. Allowing an increase of 10% per year in market value of agricultural land (as against 15% normal increase in market value of residential land). The market value of the land on the relevant time comes to about Rs. 11,500 per bigha pakka. The sale deed dated 6.1.1982 was executed 7-1/2 months before the date of Section 4 notification and applying the same formula, market value of the land on the basis of this sale deed at the relevant time comes to about Rs. 20,200 per bigha pakka. Taking an average of both the rates, the market value comes to Rs. 15,850 or in round figures Rs. 16,000 per bigha pakka at the date of Section 4 notification, which in my opinion, is the most informal speculation and guess of the market value at the relevant time.
19. Learned counsel for the appellant has also argued that the reference court should have made some deductions in view of the fact that large tract of land was acquired and exemplar relied upon related to the small piece of land and for the reason that some area would be required to be left for roads etc. in sugar factory for which land was acquired. The argument is misconceived.
20. The deduction is permissible only when exemplar relates to a very small piece of land. In U. P. Avas Avam Vikas Parishad v. Jainul Islam, AIR 1998 SC 1O28, 33% deduction was applied as the area acquired was 220 acres and exemplar relied upon related to a piece of land of 260 square yards only. In Kasturi u. State of Haryana, AIR 2003 SC 202, 8 4 acres of land was acquired and exemplar relied upon was of 1800 square yards hence deduction of 20% was applied. In the later authority reliance has been placed upon several authorities of the Supreme Court including the authority in AIR 1998 SC 1028 (supra). Relevant part of para 7 of the authority, states as follows :
"It is well-settled that in respect of agricultural land or undeveloped land which has potential value for housing or commercial purposes normally 1/3 amount of compensation has to be deducted out of the amount of compensation payable on the acquired land subject to certain valuations depending on its nature, location, extent of expenditure involved for development and the area required for roads and other civic amenities to develop the land so as to make the plots or for the residential or commercial purposes."
21. In the instant case, as stated earlier, the compensation has been determined treating the land to have only and only agricultural potential. The exemplars relied upon are also not of very small pieces of land, hence no deduction is warranted.
22. The last argument of the learned counsel for the appellant is that some of the claimants or their dependants have been given jobs in the sugar mill, hence they are debarred from challenging the correctness of the award given by the reference court.
This argument is stated to be rejected.
23. In my opinion, even if jobs are provided, it cannot have any bearing of the right of claimant to claim proper market value for his land which has been acquired.
24. Consequently, the appeals are allowed in part and the awards given by the respective Additional District Judges are modified to the extent that claimants would be entitled to the compensation for their acquired land taking the market value of the land on the date of Section 4 notification to be Rs. 16,000 per bigha pakka.
25. In view of partial success of both parties, no order as to cost is being passed.