Hon'ble Harsh Kumar, J.
(Delivered by Hon'ble Krishna Murari, J.) These appeals filed by the New Okhla Industrial Development Authority (in short 'NOIDA') and the claimants are directed against the same order deciding the references and based on same set of facts raising common question of law, hence, they have been connected and heard together and are being decided by this common judgment.
First Appeal Nos. 784 of 2003, 993 of 2003, 1052 of 2004, 1160 of 2004, 1161 of 2004, 1162 of 2004, 1163 of 2004, 1164 of 2004, 1168 of 2004, 763 of 2008, 748 of 2008, 764 of 2008, 762 of 2008, 740 of 2008, 1165 of 2004, 1015 of 2000 and 782 of 2008 have been filed by the claimants for enhancement of compensation determined by 10th Additional District & Sessions Judge, Ghaziabad vide judgment and award dated 16-08-2000 passed on Land Acquisition Reference under Section 18 of the Land Acquisition Act, 1894 (for short the 'Act'). All the appellants have claimed enhancement of compensation from Rs.126/- awarded by the reference court to Rs.170/- and have valued the appeals and paid court fees accordingly.
First Appeal Nos. 702 of 2001, 667 of 2001, 635 of 2001, 643 of 2001, 655 of 2001, 710 of 2001, 634 of 2001, 946 of 2001, 704 of 2001, 675 of 2001, 631 of 2001, 637 of 2001, 697 of 2001, 831 of 2002, 676 of 2001, 668 of 2001, 629 of 2001, 654 of 2001, 698 of 2001, 670 of 2001, 669 of 2001, 674 of 2001, 706 of 2001, 671 of 2001, 700 of 2001, 832 of 2002, 708 of 2001, 673 of 2001, 672 of 2001, 633 of 2001, 636 of 2001, 833 of 2002, 639 of 2001 and 324 of 2002 have been filed by NOIDA challenging the same judgment and award dated 16-08-2000 enhancing the compensation awarded by Special Land Acquisition Officer from Rs.50/- to Rs.126 per sq. yard.
We have heard Sri M.D.Singh Shekhar, learned Senior Advocate assisted by Sri Madan Mohan appearing for the claimants and Sri M.N.Singh and Sri Amit Manohar for the New Okhla Industrial Development Authority (NOIDA).
The land belonging to the claimants situate in village 'Gijhore', Pargana & Tehsil Dadri, district Gautam Budh Nagar (the then district Ghaziabad) was acquired by NOIDA. Purpose of acquisition was planned industrial development for Sector 52 & 53. Notification under Section 4 read with Section 17 of the Act was issued on 28-02-1990. Subsequently, a corrigendum was published on 26-07-1990. A declaration under Section 6 read with Section 17 of the Act was published in the official gazette on 12-06-1990 and a corrigendum on 14-09-1990. Award was made on 30-07-1992. By means of award dated 30-07-1992, the Special Land Acquisition Officer determined the market value of the land for the purpose of payment of compensation @ Rs.50/- per sq. yard. The claimants filed reference under Section 18 of the Act claiming compensation @ Rs.500/- per sq. yard. All the references were clubbed together and by means of common judgment & award dated 16-08-2000 compensation was enhanced to Rs.126/- per sq. yard. Interest, additional interest and solatium as provided under the provision of the Act were also awarded.
Twin issues which arise for consideration in the present case can be summed up as follows :
I.Whether compensation granted to the claimants by the reference court is appropriate and if not, what should be fair market value of the land acquired which should be paid as compensation to the claimants ?
II.Whether the reference court was legally justified in making any deduction from the compensation to be paid to the claimants on account of largeness of area or such other factors ?
The Collector made award on 04-02-1992 on the basis of 62 sale deeds executed in respect of different plots.
Learned counsel for the claimants contended that relying upon various documentary evidence in the form of exemplars including the sale deed dated 05-02-1990 in respect of land situate in village 'Gijhore' itself @ Rs.252/- per sq. yard, the reference court arrived at a conclusion that the market value of the land acquired to be Rs.252/- per sq. yard. However, thereafter, it wrongly and illegally proceeded to make 50% deduction and only awarded a sum of Rs.126/- per sq. yard as compensation. It is also submitted that once an area is fully developed and also adjacent to a fully developed area having complete infrastructure there is hardly any reason or occasion for the reference court to make any deduction from the market value of the land determined by it. It is further submitted that deduction has been made without recording any finding or taking into consideration the surrounding situation of the acquired land, which was fully developed and also location of the land which warranted no deduction.
Refuting the submission advanced on behalf of the claimants, learned counsel for the NOIDA submitted that the exemplars relied upon by the reference court for determining the market value of the land @ Rs.252/- per sq. yard were of small area and could not form the basis for determination of the market value of a large tract of land acquired and thus the reference court has committed a grave illegality. He also submitted that finding of the Special Land Acquisition Officer in respect of the land acquired are based on cogent evidence and the sale deeds and the same has wrongly and illegally been set aside by the reference court. He further submitted that the reference court rightly made deduction owning to the largeness of the area under acquisition and the said findings do not require any interference by this Court.
Both the learned counsel for the parties have placed reliance on various pronouncements in support of the arguments, which shall be referred by us at the relevant place.
It is relevant to note that the reference court determined the market value of the land acquired @ Rs.252/- per sq. yard and after making deduction 50% owing to the largeness of the area under acquisition awarded Rs.126/- per sq. yard. All the claimants have filed appeal making a claim @ Rs.176/- per sq. yard and paid court fees accordingly. Thus the dispute in the appeals filed by the claimants gets confined only to the issue whether the reference court wrongly made the deduction.
On the issue of deduction to be made in the award on account of development charges and the largeness of the area, we may straight away refer to law laid down by the Hon'ble Apex Court in the case of Thakarsibhai Devjibhai and others v. Executive Engineer, Gujarat & another; reported in JT 2001 (3) SC 90 wherein in paragraph 12 it has been held as under:
"12. .................... With reference to the question of acquisition being of a larger area, the error is, when we scan, we find for the acquisition of each land owner, it could not be said that the acquisition is of a large area. Largeness is merely when each landholder's land is clubbed together; then the area becomes large. Each landowner's holdings are of small area. ..........................."
At this very stage, reference may also be made to the judgment of the Hon'ble Apex Court in the case of Bhagwathula Samanna & others v. Special Tahsildar and Land Acquisition Officer, Visakhapatnam Municipality, reported in AIR 1992 SC 2298 wherein in paragraph 13, it has been observed as under :
"13. The proposition that large area of land cannot possibly fetch a price at the same rate at which small plots are sold is not absolute proposition and in given circumstances it would be permissible to take into account the price fetched by the small plots of land. It the larger tract of land because of advantageous position is capable of being used for the purpose for which the smaller plots are used and is also situated in a developed area with little or no requirement of further development, the principle of deduction of the value for purpose of comparison is not warranted. With regard to the nature of the plots involved in these cases, it has been satisfactorily shown on the evidence on record that the land has facilities of road and other amenities and is adjacent to a developed colony and in such circumstances, it is possible to utilise the entire area in question as house sites. In respect of the land acquired for the road, the same advantages are available ad it did not require any further development. We, are, therefore, of the view that the High Court has erred in applying the principle of deduction and reducing the fair market value of land from Rs.10/- per sq. yard to Rs.6.50 paise per sq. yard. In our opinion, no such deduction is justified in the facts and circumstances of these cases. The appellants, therefore, succeed."
A latest decision of the Hon'ble Apex Court in the case of Premwati vs. Union of India and others, reported in (2013) 7 SCC 57 clinches the issue. The Hon'ble Apex Court while affirming the decision of the High Court in determining the value of the land based on the value of adjoining land held that there is no warrant of making any deduction therefrom. It may be relevant to quote the following from the said reports :
"10. Keeping the above factors in mind, when we consider the submissions of the learned counsel for the appellants, we find that the reasoning of the Division Bench of the High Court in having relied upon Balbir Singh case and Bedi Ram case was perfectly justified. We would, however, hasten to add that when once the Division Bench rightly felt that whatever was decided in Balbir Singh case, so far as it related to the value of the land fixed therein, can be applied even in respect of the land situated in Sahibabad Daulatpur, which is an adjacent village and the acquisition in respect of the lands situated in Samaipur and Siraspur villages, we are of the considered opinion that the same value, which was applied in Balbir Singh case should have been applied even in respect of the lands belonging to the appellants. We say so because we find in Balbir Singh case, while fixing the land value in a sum of Rs.50,000 per bigha, the High Court considered the various sale deeds of the period between 18-01-1982 and 22-07-1983.
11. In the case on hand, we are concerned with the land situated in Sahibabad Daulatpur Village and the extent of land which was acquired from the appellants was 94 bighas 2 biswas of different khasra numbers covered by Award No. 26/83-84 and 4 biswas in Khasra No. 33/26, covered by Award No. 57/83-84. Thus, the extent of land acquired from the appellants was also considerably large. The total extent of land thus acquired in all the four villages was around 785 bighas of contiguous lands and the acquisition was for the purpose of establishing Delhi Technological University.
12. We are, therefore, of the view that while every other reasoning of the Division Bench in adopting the value, which was fixed in Balbir Singh case was justified, there is no need to deduct any amount from the said value, inasmuch as the exemplar relied upon by the Division Bench in Balbir Singh case, were all sale deeds pertaining to the period 18-01-1982 to 22-7-1983 i.e. prior to the very first Notification issued in respect of the present acquisition of all the four villages viz. 1-8-1983, which Notification pertains to the lands belonging to the appellants which were situated in Sahibabad Daulatpur Village.
13. Therefore, even while confirming the reasoning of the Division Bench in relying upon Balbir Singh case for enhancing the value, we only modify the rate fixed by the Division Bench to a sum of Rs.50,000 per bigha instead of Rs.42,000 per bigha. With the modification only in respect to the rate per bigha, in all other respects the Division Bench decision deserves to be confirmed. We however, do not find any merit in the claim of the appellants for claiming any further enhancement beyond the sum of Rs.50,000 per bigha, inasmuch as there was absolutely no legally acceptable material in support of any such claim."
From the pleadings of the parties and the evidence on record, we find that not only the land under acquisition situate in village 'Gijhore', was fully developed with all modern amenities but also surrounded by the area which were already having fully developed infrastructure facilities all around the land in question namely; buildings, sewer, electric lines, motorable roads, schools, marketing complex, nursing homes, the reference court cannot be said to be justified in applying the principle of deduction and reducing the market of the land from Rs.252/- to Rs.126/- per sq. yard. The argument advanced on behalf of the NOIDA that the reference court was fully justified in making deduction on account of the development charges to be incurred and the largeness of the area has no force and is not liable to be accepted.
The argument of the claimants that deduction has wrongly been made has force in view of the above quoted pronouncement of the Hon'ble Apex Court.
With respect to appeals filed by NOIDA challenging the judgment and award of the reference court enhancing the compensation, the reference court has placed reliance on the sale deeds executed in respect of the land situate in village 'Gijhore', for determination of compensation. The sale deeds in respect of the land of same village and close proximity of the date of acquisition are the best piece of exemplars to be placed reliance upon and we find no illegality in the reference court having done so.
Apart from above, the reference court has recorded a finding based on the evidence available on record that two villages namely; Hosiarpur and Morna are situate just adjacent to village in question namely, 'Gijhore'. The land of village 'Hosiarpur' and 'Morna', which were subject matter of acquisition, have fully developed infrastructure and the three villages are lying within the national capital region and close proximity of Delhi. The reference court has also recorded a finding that the land of three villages are identical and have same potentiality. The reference court has also made reference to paper no. 90Ga, the decree passed in reference case no. 562 of 1998 in respect of land situate in village Hosiarpur where the State and the NOIDA authorities on the basis of an agreement and compromise agreed to pay compensation @ Rs.284/- per sq. yard.
Part III of the Constitution of India adequately safeguards and provides a fundamental rights to the citizen for payment of compensation at the rate not less than market value for any acquisition by the State of any estate where the land is either held by a person under his personal cultivation or for any building or structure standing or appurtenant thereto unless the law relating to the acquisition provides for payment of just compensation. Second proviso to Article 31A(1) of the Constitution provides for the same. The framers of the Constitution ensured and evolved the concept of fair and just compensation equivalent to the market value for the acquisition.
In the case of Suresh Kumar vs. Town Improvement Trust, Bhopal, AIR 1989 SC 1222, the Hon'ble Apex Court has laid down the following five principles :
I.Market value on the date of publication of notification under Section 4.
II.The Court to ascertain the best possible sale price of the land in that particular position with particular potentiality.
III.The land to be valued not merely by reference to the use to which the reference to the user at the time of notification under Section 4 but also by reference to use which is reasonably capable of being put in future.
IV.Special adaptability of the land for the purpose for which it is taken as an important factor to be taken into consideration in determining the market value of the land.
V.The value of the land to be determined after taking into consideration its proximity to developed urbanised areas.
Applying the aforesaid tests laid down by the Hon'ble Apex Court to the facts of the case in hand, not only the land in question is most amply suited for residential purpose or for other industrial development but is also of a high potentiality. The land in question was having a potential value for having utilized for residential and other industrial development and the potentiality would not be enhanced because the acquisition proceedings but is independent of the same because of being in close proximity of land which already stands acquired and fully developed. It had high potential value of its own irrespective of the acquisition. There are fully developed infrastructure facilities all around the land in question namely; buildings, sewer, electric lines, motoraable roads, schools, marketing complex, nursing homes in existence prior to the notification for acquisition of the land in question. As a matter of fact, the evidence on record demonstrates the land to be of a very high potentiality surrounded by a fully developed area.
From analysis of the documentary evidence existing on the record of the case in respect of the adjoining villages, we find as follows :
Regarding village Bhangel Begampur in Land Acquisition Reference No. 392 of 1993, the compensation was awarded @ Rs.58.93 paise. The reference court enhanced the compensation to Rs.500/- per sq. yard but the same was scaled down to Rs.300/- after a deduction of 1/3rd amount on account of expenditure to be incurred for development charges and largeness of area acquired. The date of notification in respect of the said village under Section 4 and 6 was issued on 30-11-1989 and 16-06-1990 respectively.
With respect to village Morna, the compensation was awarded by the Special Land Acquisition Officer @ Rs.70.40 paise. The date of notification under Section 4 & 6 in respect of the said village was 31-2-1991 and 04-01-1992 respectively. The reference court enhanced the compensation to Rs.264/- per sq. yard.
In another adjoining village Sarfabad where the notification under Section 4 & 6 was made on 23-11-1989 and 24-05-1990 respectively, the reference court enhanced the compensation to Rs.200/- per sq. yard.
Similarly, in Land Acquisition Reference No. 213 of 1993 in respect of village Chalera Banger where the notification under Section 4 & 6 was dated 27-02-1988 and 15-12-1989, the compensation was awarded @ Rs.42.64 paise. The reference court vide judgment and award dated 28-08-2000 enhanced it to Rs.138.75 paise per sq. yard.
The enhancement of compensation in respect of the land situate in aforesaid adjoining and nearby villages was subject matter of various appeals in this Court, which were connected together and disposed of by a common judgment dated 19-05-2010 by a Division Bench in leading First Appeal No. 1056 of 1999 (Raghunath Singh & others vs. State of U.P.) along with connected appeals. The said Division Bench relying upon the judgment in LAR No. 392 of 1993 (Ram Chandra vs. State U.P. & others) relating to village Bhangel Begampur wherein the rate of Rs.58.93 paise per sq. yard awarded by the Special Land Acquisition Officer was enhanced to Rs.500/- sq. yard but after making 1/3rd deduction towards development charges and the largeness of the area, it was scaled down to Rs.300/- per sq. yard, awarded compensation @ Rs.297/- per sq. yard. It may be relevant to quote the following observations from the judgment of Raghunath Singh (Supra) :
"It seems that during the pendency of the instant appeals certain developments took place and subsequent to the same certain awards have been made by the reference court with respect to certain other acquired lands which are similar to that of the appellants herein. To bring the same in the notice of this court, the appellants have filed a supplementary paper-book along with an application for the same to be taken on record on 13.08.2003. It is important to mention here that this court can take notice of such additional evidences under the provisions of Order XLI Rule 27 of the Code of Civil Procedure, 1908. Order XLI Rule 27, C.P.C. provides that:
27. Production of additional evidence in Appellate Court - [1] The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in Appellate Court. But if [a] the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [aa] the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or [b] the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgement, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
[2] Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
In accordance with the aforesaid provision, the appellant has produced a large number of document, which are on record, for consideration by this Court in the form of supplementary paper book. These are the awards made by the reference court in subsequent proceedings with respect to the similar land acquired by the defendant/State. According to the argument advanced by the appellant, the aforesaid awards given in these documents as well as the order of the reference court should be taken into account while considering the claim of the appellants. The appellants contend that they have been deprived of their valuable land by the State largesse without being comepnsated justifiably for the same.
The above mentioned documents were permitted to be included as part of the pleadings advanced by the appellants, as we think that the aforementioned documents are important to be taken into consideration by this Court so as to reach on correct factual position to decide the present case. "
It has been further brought to the notice of this Court that during the pendency of the present appeals, few of the original appellants have died and in place of them substitution applications have been moved by the legal representatives, the same have been allowed.
So far as the details of the abovementioned exemplare decisions of the reference court are concerned, which have been filed as additional evidences/supplementary paper-book, they can be summed up as hereunder:-
Firstly, the L.A.R. No. 392/93, Ram Chander & Ors. Vs. State of U.P. & Ors., the same related to the village Bhangel Begumpur, wherein the rate awarded by the S.L.A.O. was Rs. 58.93/- while the rate awarded by the reference court in the reference was Rs. 500/- per sq. yard. The award compensation at the rate of Rs. 500/- , has, however, been scaled down to Rs. 300/- after making a deduction of 1/3rd of the amount in the name of development charges owing to largeness of the area acquired. The date of Notification in this matter was 30.11.1989 & 16.06.1990 under Section 4 and 6 of the Act, respectively."
We also take notice of the fact of another Division Bench judgment dated 11-10-2012 passed on First Appeal No. 564 of 1997 in respect of three adjoining and nearby villages namely, Nagla Charan Das, Geha Tilapatabagh and Chhalera Banger affirming the compensation to be awarded @ Rs.297/- per sq. yard. It may be relevant to quote the following relevant portion from the judgment of first Appeal No. 564 of 1997 :
"The cases before us which relates to village Bhangel Begumpur notifications were issued in the years, 1983, 1986 and 1988 and possession was also taken in the years, 1983, 1987 and 1989 So far as other three villages Nagla Charandas, Geha Tilapatabagh and Chhalera Bangar, notifications were issued in the years 1982, 1986, 1988, 1991, 1992 and possession was also taken in the years, 1987, 1990, 1992 and 1995. and the compensation was determined and ultimately under section 18 of the Land Acquisition Act, 1994 by the Reference Court in the year, 1993, 1995, 2002, 2003, 2007, 2008 and 2010 All the four villages are adjacent to each other. The Reference Court ultimately granted similar relief in respect of the matter of Raghuraj Singh (supra). Hence we quantify the rate of compensation as above, the same will be paid following the directions as we have given in the case of Raghuraj Singh (supra)."
We are informed at the Bar that the judgment rendered in the case of Raghuraj Singh (Supra) has also been affirmed by the Hon'ble Apex Court by dismissal of petition for Special Leave to Appeal No. 18331 of 2008 along with various other Special Leave to Appeals, NOIDA vs. Pooran Singh, vide judgment and order dated 05-02-2014.
From an overall analysis of the evidence and material on record, we find that the claimants' contention for due fixation and enhancement of compensation based on various decision of the reference court as well as that of this Court in appeals is well founded and convincing. The Division Bench judgment of this Court referred to above in respect of the land situate in adjoining and nearby villages being similar in nature as well as having the same potentiality cannot be ignored. Further due to proximity in time between acquisition of the land in the case in hand and the land acquired which has been subject matter of the Division Bench judgment of this Court, the compensation awarded by the Division Bench have a binding precedent and not liable to be overlooked or ignored.
In view of above facts and discussions, we find no illegality in the finding of the reference court determining the market value of land @ Rs.252/- per sq. yard and the impugned judgment with respect to the same does not require any interference. However, 50% deduction from the awarded amount cannot be held to be justified and the judgment and award of the reference court to that extent cannot be sustained.
However, since the claimant-appellants have only claimed compensation @ Rs.176/- per sq. yard and paid court fees accordingly, First Appeal Nos. 784 of 2003, 993 of 2003, 1052 of 2004, 1160 of 2004, 1161 of 2004, 1162 of 2004, 1163 of 2004, 1164 of 2004, 1168 of 2004, 763 of 2008, 748 of 2008, 764 of 2008, 762 of 2008, 740 of 2008, 1165 of 2004, 1015 of 2000 and 782 of 2008 are allowed to the above extent and the appellants are held to be entitled for payment of compensation @ Rs.176/- per sq. yard along with all other statutory benefits such as interest, additional interest, solatium etc. as provided under provisions of the Land Acquisition Act, 1894.
First Appeal Nos. 702 of 2001, 667 of 2001, 635 of 2001, 643 of 2001, 655 of 2001, 710 of 2001, 634 of 2001, 946 of 2001, 704 of 2001, 675 of 2001, 631 of 2001, 637 of 2001, 697 of 2001, 831 of 2002, 676 of 2001, 668 of 2001, 629 of 2001, 654 of 2001, 698 of 2001, 670 of 2001, 669 of 2001, 674 of 2001, 706 of 2001, 671 of 2001, 700 of 2001, 832 of 2002, 708 of 2001, 673 of 2001, 672 of 2001, 633 of 2001, 636 of 2001, 833 of 2002, 639 of 2001 and 324 of 2002 filed by NOIDA accordingly stand dismissed.
However, in the facts and circumstances, we do not make any order as to costs.
Dt.05-11-2014 nd.
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