Hon'ble S. C. Chaurasia, J.
The instant appeal has been preferred under Section 54 of the Land Acquisition Act, 1894 [in short referred to as the 'Act'] against the judgment and order dated 4.6.1993 passed by the Tribunal in Misc. Case No. 25 of 1989 upon a reference made under Section 18 of the Act, against the Award dated 23.9.1986, passed by the Special Land Acquisition Officer, Sharda Sahayak Pariyojna, Lucknow, partly allowing the claim of the appellant.
Shorn of unnecessary details, the facts material for adjudication of the present case, may be stated thus:
Appellant is a bhumidhar of plot no. 1341 area 16-1-7 bighas situated in village Para, Pargana, Tehsil and District Lucknow. On 13.10.1982, a notification under Section 4 of the Land Acquisition Act was published for construction of the Ring Road whereby an area of 6-10-0 Bighas of the aforesaid plot was notified for acquisition. Simultaneously a declaration under Section 6 was made on the same date and the possession of the acquired land was taken on 26.4.1984. Thereafter the Special Land Acquisition Officer made an Award on 23.9.1986 whereby award @ 0.98 paise per sq. ft was awarded to the appellant although the compensation @ Rs.10/- per sq.ft. was claimed besides the value of constructions standing thereon which include pump house, office building, manager's quarter, munshis quarter, pucca well etc. including the compensation for severance.
Being dis-satisfied with the Award made by the Special Land Acquisition Officer, the appellant preferred a reference under Section 18 of the Act, which was referred by the Collector to the Presiding Officer, Nagar Mahapalika Tribunal/Additional District Judge, Lucknow. Before the Tribunal, the appellant examined Dipankar Pandey (P.W.1), appellant himself as (P.W.2) and Farhatehullah Kirmani as (P.W.3). Apart from the oral evidence, the appellant also filed copy of the sale deeds, agreement for sale, valuation certificate of the Valuer, judgment passed by this Hon'ble Court in another case, Khatauni, copy of circle rate, copy of the village map issued by Geological Survey of India, Copies of Form-7 issued by Income Tax Department, Copy of the judgment passed in First Appeal No. 76 of 1972 and 177 of 1972, certified copy of the payment made by the Special Land Acquisition Officer and other relevant documents to establish that the compensation given by the Special Land Acquisition Officer is too low and is not based on correct appreciation of the material on record.
The Tribunal accepted the assertion of the appellant and held that the compensation awarded by the Special Land Acquisition was not adequate vide its judgment dated 4.6.1993 and directed for payment of compensation @ Rs.3.88 per sq. ft alongwith solatium @ 30% on the market value under Section 23(2), 12% interest on the additional amount on the above market value awarded under Section 23(1)-A for compulsory nature of the acquisition and a sum of ` 96,600/- for the cost of the constructions existing over the land acquired besides 9% interest on the amount which has been found due by the Tribunal from the date of possession till the date of payment.
As the compensation as claimed @ Rs.10/- per sq. ft. was not awarded by the Tribunal, the instant appeal has been preferred by the appellant on the ground of it being insufficient and inadequate.
Sri Arif Khan, Senior Advocate appearing for the appellant has argued that the Tribunal on a consideration of entire evidence on record held that the acquired land possesses building potentiality on the date of notification but the Tribunal ignoring the ample evidence on record coupled with the fact that the evidence led by the appellant was not controverted by the State Government had wrongly determined the market value of the land @ Rs.3.88 per sq. ft.
Elaborating his arguments, it has been argued that the oral and documentary evidence lead on behalf of the appellant remained unchallenged as the State of U.P. has not filed any evidence in rebuttal, yet the court below had erred in law not awarding the compensation as claimed by the appellant. Furthermore, the learned court below committed an error in ignoring the sale deed executed by Satya Deo Nanagiya in favour of one Ram Kumar Gupta in respect of plot no. 355/332-Ka as well as paper No. C-27 copy of the circle rate prescribing the value of the land for the payment of stamp duty.
In contrast, Standing Counsel submitted that all the pleas which have been raised here by the appellant were raised before the Tribunal and the Tribunal after recording detailed and cogent findings has enhanced the compensation from 0.98 paise per sq. ft to Rs.3.88 per sq.ft. which is adequate. Therefore, there is no illegality or infirmity in the impugned judgment and the instant appeal is liable to be rejected.
It is important to note that some factors, which are relevant for determination of the amount of compensation, are the nature and quality of land, whether irrigated or unirrigated, facilities for irrigation, presence of fruit bearing trees, location of the land, closeness to any road or highway, evenness of the land, existence of any building or structure and a host of other factors bearing on the valuation of the land.
It is a settled principle of law that onus to prove entitlement to receive higher compensation is upon the claimants, which they can discharge while placing and proving on record sale instances and such other evidences as they deem proper. At the same time, it is also to be kept in mind by the Courts that in given facts and circumstances of the case and keeping in mind the potentiality and utility of the land acquired, it can award higher compensation to ensure that injustice is not done to the claimants and they are not deprived of their property without grant of fair compensation.
In the instant case the Special Land Acquisition Officer and the Tribunal have held in explicit terms that the land possesses building potentiality on the date of acquisition. There is no dispute that the acquired land situates close to the Kanpur road and was accessible to the main road by a pucca private road. It has come in the statement of the witnesses that the land in question situates close to the various offices and huge constructions work were going on at the relevant time in close vicinity. The statement of the appellant has been corroborated by Dipanker Dubey (P.W.1), who had stated that there are two Polytechnics, Business Centre and Education centre in nearby vicinity. Further all the amenities of urban area were available. In paragraph 41 of the judgment, the Tribunal has observed as under:-
"Moreover, the State has not disputed the nature of building potentiality of the acquired land on the date of the notification. The Special land Acquisition Officer himself awarded the compensation at the rate of Rs. 0.98 paise per sq. ft as being the market value of the acquired land which go to establish that the acquired land possessed the building potentiality on the date of the notification."
C-63 is the judgment passed in the Tribunal which was filed by the claimant as an exemplar of village Para. The judgment relates to the land of village Para which was acquired by the notification dated 20.10.1962. The Tribunal after considering the evidence, awarded compensation at the rate of Re.1/- per sq. ft being the market value in the year 1962. In may be noted that the High Court in respect of village Jafarpur, which was also acquired in the year 1962 and is close to village para, awarded compensation at the rate of Rs.1.20 per sq. feet. Similarly, C-66 is the copy of the award made by the Special Land Acquisition Officer in respect of land situate in village Daripyar, which was acquired by a notification dated 18.11.1971. There is no dispute in the fact that the village Daripyar is also a neighbouring village of Para and its market value was assessed as Rs.3.38 paise per. sq. ft in the year 1978. By series of judgments it has been held that the value of the land doubles in four-five years, which is a normal phenomena. Therefore, when in respect of village Jafarpur, which is close to village Para but having very less amenities and not very good location-wise than the village Para, the High Court had granted compensation at the rate of Rs.1.20 per sq. feet in respect of the land acquired way back in the year 1962, the land of village Para would fetch much higher price on account of its location, availability of urban facilities and standing of business centre, education centre etc. Moreover, the land of the claimant situate in village Para was acquired after twenty years i.e. on 13.10.1982.
In Jogendra Singh vs. State of U.P. (2008)17 SCC 133 this Court has held that in urban areas or land with potential for development, a cumulative increase of 10% to 15% would be appropriate. In the instant case, the appellant has filed sale deed executed by Jurwan in favour of Brij Kishore which was marked as C-22. This sale deed is in respect of plot no. 253 of village Jalalpur for a consideration of Rs.8,344 on 18.10.1982. The rate of this plot, if calculated works out close to Rs.5/- per sq. feet. Similarly, C-70 is the copy of the sale deed executed by Kailash Nath Nagar in favour of Smt. Shashi Bala in respect of an area measuring 9840 sq. ft of village Kanausi for a consideration of Rs.39,500/- on 22.3.1980. If market value is calculated by this sale deed, it also works to Rs.5/- per sq. ft. It is informed at the Bar that the village Kanausi is in close propinquity of village Para, where the land in question is situated. We are of the view that both the sale deeds are relevant though the size of the plot is small but it is close to the acquired lands.
As far as the severance compensation is concerned, we do not find any perversity in the finding recorded by the Tribunal and as such, the assertion made by the counsel for the appellant in this regard are not accepted. The Tribunal has held that the appellant has failed to establish that the left out area has been rendered useless or its productivity has been affected by the acquisition of the land. It is an admitted fact that the claimant possessed 16-1-7 land of plot no. 1341 and only 6-10-0 has been acquired by the State Government.
After going through the impugned judgment and material on record, we have no hesitation in saying that the appellant has led ample evidences to show that the Special Land Acquisition Officer and the Tribunal have granted less compensation. In the present case, the appellant has not only lost his agricultural land but on account of acquisition and construction of road, the remaining unacquired area of the land became in the shape of a strip. Further on account of construction of road, the assertion of the appellant that the land became a low lying area causing accumulation of water rendering it almost useless for the agricultural activities cannot be brushed aside lightly.
Taking the overall afore-stated facts into consideration, we hold that the appellant shall be entitled to compensation at the rate of Rs.5/- per square feet for the acquired land, which we consider to be just and fair. Needless to say that the State shall also be liable to pay additional compensation and solatium on the amount enhanced and fixed in terms of this order including payment of interest in terms of the rate of interest awarded by the Reference Court.
The appeal stands allowed to the aforesaid extent without any costs.