1. Heard Sri R.C. Maurya, learned counsel for the claimant-appellant and Sri B.K. Yadav, learned standing counsel for the State-respondents.
2. This first appeal has been filed for enhancement of compensation.
3. Briefly stated facts of the present case are that by notification under Section 4(1) of the Land Acquisition Act, 1894 published in the U.P. Gazette on 17.04.1982, an area of 1.492 acres land of certain khasra plots including plot Nos.75 and 77 measuring 16 biswas in village Rajpura, Pargana Bhadohi, Tehsil Gyanpur, District Varanasi belonging to the claimant-Appellant, which was acquired for construction of a building for telephone exchange. Notification under Section 6 of the Act was published in the Gazette on 17.04.1982. Possession was transferred on 18.01.1983. The Special Land Acquisition Officer made the award on 13.03.1984 awarding compensation @ Rs.6428.50 per biswa.
4. As per the impugned judgment of the reference court, the boundaries of the acquired khasra plot Nos.75 and 77 of the claimant-appellant, are undisputedly as under:
5. The S.L.A.O. and the court below found that Bhadohi Railway Station (Railway Crossing) is situate at a distance of one furlong from the acquired land of the claimant-appellant, the acquired land is within the municipal limits of Nagarpalika Bhadohi, means of transportation are available and near the acquired land there are residential houses and businesses establishments and the area is regularly developing. The S.L.A.O. selected a sale deed at Serial No.46 of his chart as exemplar to determine the compensation.
6. I have looked into the records of the court below and I find that as per chart prepared by the S.L.A.O. the aforesaid sale deed at Serial No.46 is dated 07.04.1981 with respect to khasra plot No.73, measuring 10.5 dhoor disclosing selling rate of Rs.8571.43 per biswa. Perusal of the map of the village filed in evidence and available in the records of the court below shows that plot No.73 (subject matter of the selected sale deed exemplar) is not adjoining the road but between it and the road, there is plot No.72 whereas the plots of the claimant-appellant are adjoining the road.
7. Before the reference court, the respondents have not led any evidence with regard to the market value of the acquired land of the claimant-appellant. The claimant-appellant has filed in evidence two sale deed exemplars namely sale deed dated 22.01.1982 (paper No.22ga) whereby one Devi Prasad has sold 10 biswas land of his khasra plot No.123 for Rs.10,000/- and the sale deed dated 02.01.1982 (paper No.23ga) whereby one Devi Prasad has sold 10 biswas land of his khasra plot No.123 for Rs.10,000/-. These sale deeds indicate selling rate of nearby road side land of khasra plot No.123 to be Rs.20000/- per bigha. As per map of the village available in the records of the court below, khasra plot No.123 is adjoining the road and is near to the acquired land of the claimant-appellant. These sale deeds were executed about one year before the acquisition. It is not the case of the respondents that these sale deeds are not genuine or motivated. Therefore, there was no justification for the reference court to reject these two evidences and instead to rely upon the observation of the S.L.A.O. made in the award.
8. In Chiman Lal Hargovinddas v. Special Land Acquisition Officer, Poona and another, (1988)3 SCC 751 (para-4), Hon'ble Supreme Court laid down the law for determination of market value in acquisition, as under:
"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. (Some times 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.
(l0) 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 be taken 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 in terms of price variation as a prudent purchaser would do.
(13) The market value of the land under acquisition has there after 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 developed area
4. lower level requiring the depressed portion to be filled up
5. regular shape
5. remoteness from developed locality
6. level vis-a-vis land under acquisition
6. some special disadvantageous factor 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 l0000 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 percent to 50 percent 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 looked 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."
(Emphasis supplied by me)
9. In view of the law laid down by Hon'ble Supreme Court in the case of Chiman Lal Hargovinddas (supra), it is clear that a reference under Section 18 of the 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. Undisputedly, the sale deed relied by the S.L.A.O. was not produced or provided by the respondents before the reference court in the reference. Likewise, the sale deeds exemplars as collected by the S.L.A.O. were not filed in evidence before the court below by the respondents. Learned standing counsel could not point out from the paper book or from the records of the lower court that any sale deed exemplar in evidence was filed by the respondents. Therefore, there was no justification for the reference court to determine the market value of the acquired land on the basis of a sale deed which was neither filed in evidence nor it was before it but was merely referred in the award passed by the S.L.A.O. On the contrary, the sale deed exemplars being paper Nos.22ga and 23ga, were filed in evidence by the claimant-appellant to establish that nearby similar road side land situate on the Bhadohi-Gyanpur road was sold @ Rs.20,000/- per biswa.
10. Under the circumstances, I am of the considered view that the sale deed exemplars being paper Nos.22ga and 23ga can be made basis to determine market value of the acquired land of the claimant-appellant as on the date of acquisition, i.e. 17.04.1982. Since as per the sale deed exemplars filed in evidence, smaller area measuring 10 dhoors was sold @ Rs.20,000/- per biswa while total land measuring 1.492 acres, i.e. 2 bighas 7 biswas and 16 dhoors was acquired and therefore a deduction on account largeness of area deserves to be made.
11. Considering the facts and evidences on record and after applying deduction of 40% for the largeness of the area, the market value of the acquired land of the claimant-appellant is determined @ Rs.12,000/- per biswa. The claimant-appellant shall be entitled to all other statutory benefits as per the impugned judgment of the reference court dated 23.02.1985 in L.A.R. No.113 of 1984 (Kailash Nath Gupta vs. Collector, Varanasi). The impugned judgment and decree is accordingly modified.
12. The appeal is partly allowed to the extent indicated above.
Order Date :- 26.02.2019 NLY