Swatanter Kumar, J.
1. In the revenue estate of village Karnal, now one of the biggest towns of Haryana the State Government of Haryana, issued a notification on 8.2.1989 under Section 4 of the Land Acquisition Act, hereinafter referred to as the Act, intending to acquire nearly 331.58 acres of land. In pursuance thereto notification under Section 6 of the Act was issued and published on 7.2.1990. Though the land intended to be acquired was 331.58 acres, but possession of only 287.64 acres was taken.
2. The Land Acquisition Collector after granting opportunity to the parties and having entertained their objections, passed one consolidated award being award No. 6 dated 19.12.1990. Vide this award the compensation awarded to the landowners was as under:-
1. Plain area Rs. 2,50,000/- per acre.
2. Muga Canal Rs. 1,84,660/-per acre.
3. Sewage Water Nalla Rs. 2,10,796/- per acre.
3. The landowners being dissatisfied with the extent of compensation awarded for acquisition of their land filed objections which resulted in filing of more than one hundred references under Section 18 of the Act to the learned District Judge, Karnal. The Additional District Judge, Karnal, vide his judgment dated 31.8.1993 awarded a sum of Rs. 90/- per square yard.
4. It needs to be noticed that the references so received by the learned Additional District Judge, Karnal, were disposed of by 13 different judgments/awards, the details of which are as under:-
------------------------------------------------------------------ Sr. LAC No. Title of case Date of No Judgment. ----------------------------------------------------------------------
1. 152/92 Smt. Bindu Garg v. Haryana State 31.08.1993
2. 109/92 Raghbir Singh v. Haryana State 09.04.1994
3. 50/92 Savitri Devi v. Haryana State 08.08.1994
4. 152/92 Sadhu Ram v. Haryana State 29.03.1994
5. 7/92 Brij Mohan v. Haryana State 20.01.1994
6. 21/92 Sumitra Devi v. Haryana State 22.02.1994
4. 54/4/92 Gurcharan Singh v. Haryana State 10.03.1995
5. 38/4/92 Rattan Singh v. Haryana State 04.12.1995
6. 41/4/92 Munshi Ram v. Haryana State 16.03.1994
7. 32/94 Vasishth Kumar v. Haryana State 21.03.1994
8. 6/92 Brij Mohan v. Haryana State 20.12.1993
9. 154/92 Ram Kishan v. Haryana State 05.12.1995
10. 137/922 Subhash Chand v. Haryana State 31.01.1994
11. 14/92 Narinder Singh v. Haryana State 01.12.1994
12. 10/4/92 Col. Shamsher Singh v. Haryana State 21.02.1994
13. 141/4/92 Smt. Raj Bala v. Haryana State 15.03.1995
14. 110/92 Rajbir v. Haryana State 10.06.1995
15. 40/4/92 Shanti Devi v. Haryana State 04.12.1995
6. 53/4/92 Gurcharan Singh v. Haryana State 05.02.1996
17. 114/94 Sat Pal v. Haryana State 05.02.1996
18. 44/119/92 Mahant Chetan Dass v. Haryana State 07.11.1996 --------------------------------------------------------------------
5. Though there was considerable increase in the amount of compensation awarded to the claimants, still the land-owners were dissatisfied with the amount of compensation awarded and they filed Regular First appeals before this Court. On the other hand, dissatisfied with the amount of compensation awarded to the claimants, even the State preferred Regular First Appeals, praying for reduction in the amount of compensation. Though number of Regular First Appeals have been listed before the Court arising from the above 21 different judgments, but the learned Additional District Judge has followed the judgment pronounced by him in the case of Smt. Bindu Garg. The judgment in Bindu Garg's case has been followed by the learned Additional District Judge in all subsequent 21 awards passed by him. As all the Regular First Appeals arise from common notifications under Sections 4 and 6 of the Act dated 8.2.1989 and dated 7.2.1990 and are founded on common premises, reasoning and conclusions arrived at by the learned Additional District Judge in Bindu Garg's case, I have considered it appropriate to dispose of all the cases arising therefrom by a common judgment.
6. The varied documentary and oral evidence was led by the appellants to claim higher amount of compensation. The claimants had examined 18 witnesses and had proved on record documentary evidence consisting of Ex.P.1 to P.67 and photographs Ex.A.65 to A.127. Out of this the claimants have produced 11 sale instances on record which were Ex.P.2, Ex.P.25 to Ex.P.34 and Ex.P.50/A. The claimants also proved on record Ex.P.35, Ex.P.36 and Ex.P.67 which are the award, gazette notification and order passed by the Land Acquisition Collector, Karnal, in relation to the value of the land.
7. The State to meet the case of the claimants produced four sale instances on record Ex.R.12 to Ex.R.15 in addition to producing other documents showing the market value assessed by the concerned authorities. The respondents also examined five witnesses RW1 to RW5 to support the documentary evidence produced by them.
8. The learned Counsel Mr. Surjewala appearing for the claimants claimed enhancement of compensation awarded to the claimants, amongst others, on the following grounds:-
(i) The learned Additional District Judge even as per the method of calculation adopted by him has fallen in arithmetical error and the compensation awarded ought to be taken Rs. 169.68 per square yard in place of Rs. 150/-;
(ii) Keeping in view the location and potential of the acquired land, the claimants would be entitled to compensation at the rate of Rs. 1,000/- per square yard;
(iii) The learned Judge has erred in applying 40 percent cut to the awarded amount as in the facts and circumstances of the case no cut need be applied to the amount of compensation awarded;
(iv) The learned Judge has neither taken into consideration the documents Ex.P.35 and Ex.P.67 nor their effect on the amount of compensation payable in relation to the acquired land;
(v) The State is bound to pay the compensation on the fair market value which in any case to be assessed on the basis of Ex.P.67, the order passed by the Collector after due adjudication assessing a sum of Rs. 250/- per square yard without applying any cut to the awarded amount;
(vi) The sale instances though proved by the claimants are result of distress sales as the notification Ex.P.36 under Section 4 of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963 was issued on January 5, 1978. As such the sale instances do not reflect a fair market value of the land in question and the claimants are entitled to the market value reflected in Ex.P.35 and Ex.P.67.
(vii) Lastly and in the alternative it was contended that even applying the principle of averages to the sale instances, awards and judgment produced on record, the claimants would be entitled to much higher amount of compensation than the one awarded by the learned Additional District Judge.
On the other hand, the learned Advocate General, Haryana, appearing on behalf of the State, while praying for reduction of the amount of compensation awarded contended:-
(i) That the learned Additional District Judge ought to have applied 53 per cent cut awarded the amount of compensation to the sale instances proved by the claimants on record.
(ii) The instances Ex.P.35 and Ex.P.67 are in law not referable and do not reflect the fair market value of the land at the time of acquisition. The alleged fridging of land by issuance of notification Ex.P.36, does not in any way adversely affect the market value of the land in question. Claimants are bound by the value reflected in the sale instances which have been exhibited on record.
9. In order to appreciate the rival contentions raised on behalf of the parties, it will be appropriate to firstly discuss the aspects relating to location and potentiality of the land which was acquired in the present case.
Location and potentiality of the acquired land;
10. Site plans Ex.P.3 and P.4 have been proved on record. Ex.R.10 is Akshshijra produced and proved by the respondent. As is clear from the language of the notification itself, the land was acquired for residential and- commercial purposes in Sectors 4 and 5 of Karnal. Ex.P.3, which is the situational plan, also indicates the acquired land and the sale instances. Ex.P.4 shows that the acquired land is surrounded by Rajinder Nagar on the one side, by new G.T. Road by pass on the other side and again Meerut Main Road on the Northern side and Transport Nagar on the other. Across the road, developed Sectors No. 6, 7, 12, 13 and 14 have been shown. In other words, the land is surrounded by fully developed areas and Ex.P.5 pamphlet issued by the Haryana Urban Development Authority in fact itself discusses the potential of the land in the following words:-
"RESIDENTIAL SECTOR 4 (Part-II) & 5 (Phase-I), KARNAL.
The Haryana Urban Development Authority has allotted about 10,000 plots in Sectors 6, 7, 8, 9, 12 and 14. Further, Haryana Housing Board has provided about 3,000 built houses. But due to a considerable backlog against existing demand and rapid urbanisation in the area, the housing activity is not keeping pace with the increasing demand.
Sectors 4 (Part-II) & 5 (Phase-I) have great importance by virtue of location on eastern side of By-pass and southern side of Meerut Road. Moreover, the bridge over river Yamuna being under construction, there is every possibility of fast development on this side. As such to tide over the acute housing problem, the Haryana Urban Development Authority offers residential plots for allotment in Sectors 4 (Part-II) & 5 (Phase-I) ranging from 98 sq.mtrs. to 420 sq. meters. This sector will be self-contained in respect of infrastructural facilities like schools, health centre, community centre, parks and public services like wide metalled roads, sewerage, drainage, water supply and street lights etc."
11. At this stage it may be relevant to refer to the admissions made by RW5 in his cross-examination before the learned Court below:-
" . . . . The notification under section 4 in respect of Sector-4 Part-I was made on 17.10.1978. This land is situated just adjacent to the acquired land and all development works had already been carried out by HUDA much before the notification under Section 4 in respect of the land in question. It is also correct that Sector-4 Part-I was acquired for commercial purposes i.e. for development as Transport Nagar.
xx xx xx xx
The other sale instances on which the State relies have not been shown in Ex.R.10. I cannot say if there were plots in the land shown as blue. It is correct that the land in question and the land acquired for purposes of Sector-6 has the same level. Volunteered, that roads are at a higher level. I have seen Canal Colony as well. That colony is also in front of the acquired land and only the Meerut Road intervenes."
12. The learned Additional District Judge in the judgment under appeal concluded in relation to the location and potentiality of the land in the following words:-
"On the other hand, the respondents have examined five witnesses namely, RW1 Amir Chand, RW2 A.K. Maggu, RW3 Randhir Singh, RW4 Jasbir Singh and RW5 Jai Pal, Patwari. The statements of RW1 to RW4 are not relevant for the purpose of potentiality of the land in question. The statement of PW5 Jai Pal, Patwari is relevant to be referred here in this context. RW5 stated that he prepared scaled site land Ex.R.10. The land was acquired for residential and commercial purposes but before that it was used for agricultural purposes. The acquired land was about at a distance of 2.5/3 K.M. from the courts and the same was its distance from Civil Hospital, Karnal. In his cross-examination, RW5 stated that it was correct that towards the North of the acquired land was Meerut Road and towards West was G.T. Road bye-pass. Sector-6 Urban Estate, Karnal, was towards the north of the land in question and only Meerut road intervened. The notification under Section 4 of the Act in respect of the land acquired for purposes of Sector-6 was made on 4.6.1980 and developments of Sector 6 were completed much before the notification under Section 4 in respect of the land in question. All modern facilities such as water, sewerage, electricity have been provided in Sector 6 and several buildings have already been erected when notification under Section 4 was made. RW5 admitted that towards the West of the land in question across the G.T. Road bye-pass is Sector-14 Urban Estate, Karnal which was fully developed when the notification under Section 4 was made in respect of the land in question. He also admitted that Rajinder Nagar developed by Improvement Trust, Karnal, was also in front of the land in question and only the G.T. Road bye-pass intervened. That colony was fully developed prior to the notification under Section 4 of the Act was made in respect of the land in question. He further testified that just adjacent to the acquired land abutting Meerut Road, there were shops, residential bungalows and other commercial establishments and the same were in existence prior to the impugned notifications. Towards the West Also, there were commercial establishments such as Cold Storage, godown and other industries. It was correct that notification for acquisition of these establishments was also made alongwith the acquired land but the same later on were exempted. Sector 4 Part-1 was also carved out by HUDA, which was just adjacent to the acquired land and all development works had already been carried out by HUDA much prior to the notification under Section 4 of the Act in respect of the land in question."
" .... He also admitted existence of shops, residential bungalows and other commercial establishments adjacent to the acquired land much prior to the impugned notification under Section 4 of the Act. He also admitted the existence of cold-storage, godown and other industries towards the West of the acquired land and in fact, the same were also acquired alongwith the land in question but the same were later on exempted. In this way, from the statements of PWs and documentary evidence on record as referred to above, it is clear that the land in question had a residential and commercial potentiality when the notification under Section 4 of the Act was issued."
The cumulative effect of this discussion is that the land in question cannot be said to be a land which has no future potential. On the other hand, the inevitable conclusion is that the location of the acquired land is ideally located having a very high commercial, residential and industrial potential. It is surrounded on all sides by developed areas or bye-pass of the national highway.
DETERMINATION OF FAIR MARKET VALUE OF THE ACQUIRED LAND AS ON THE DATE OF NOTIFICATION UNDER SECTION 4:-
13. As already noticed the claimants have proved on record Ex.P.2, Ex.P.25 to P.34 and P.50-A which are the sale instances and all of them relate to the acquired land itself. It is contended by learned Counsel for the claimants that these sale instances do not depict the correct and fair market value of the land in question because these sales were distress sales. He further contended that the actual and fair market value of the land was much more in excess than the value indicated in these sale instances. On the other hand, the Advocate General contended that the Court should not take these sale instances into consideration because these instances are sales of land of smaller pieces. Their location is different. In other words these sale instances are stated to be not showing the fair and reasonable market value of the land in question on the date of acquisition.
14. Ex.P.35 and Ex.P.67 are the other pieces of relevant evidence available on record. Ex.P.35 is an award in relation to acquisition of 0.57 acres in the revenue estate of Karnal. The location of this land is very near to the land in question. In fact this land was also acquired for development of the urban area near the Railway Station, Karnal. The Land Acquisition Collector had awarded a sum of Rs. 475/- per square yard on 22.3.1988 vide Award No. 16 (Ex.P.35). In this case, the land was acquired vide notification under section 4 dated 23.4.1985.
15. Ex.P.67 is the order of the Collector dated 9.7.1991. This order was passed by the Collector in furtherance to the proceedings conducted by him upon impounding the sale deed Ex.P.29. In Ex.P.29 the sale consideration shown in the land which form part of the acquired land is at the rate of about Rs. 200/- per square yard.
16. Another material piece of evidence on which the claimants heavily rely for the purposes of enhancement of the awarded amount of compensation is the sale of land measuring approximately 8000 square meters at the rate of Rs. 1007/- per square meter by Haryana Urban Development Authority itself to the Indian Oil Corporation. This sale is admitted and its value was shown in the statement of PW8 Yash Pal, Assistant, Office of Estate Office, Haryana Urban Development Authority, Karnal. This land was allotted in Sector 16. This sale instances produced and proved by the respondents were not taken into consideration by the learned Additional District Judge because three out of four sale instances produced were not relevant being not part of acquired land and the other sale instance which was part of acquired land was again rightly rejected by the Additional District Judge for the reasons that it referred to an uneven small piece of land having a pit and, therefore, was not considered to be a comparable instance in regard to the other and which was acquired and is plain and under use. They were away from the acquired land and the Additional District Judge preferred to adopt the sale instances produced by the claimants which related to the acquired land itself. However, the learned Additional District Judge did not consider the effect of Ex.P.67 and Ex.P.35 though he took into consideration Ex.P.29. Thus, the Court has to consider what would be the fair and reasonable market value of the land in question on the basis of the above evidence.
17. Firstly, I would like to discuss the effect of the sale instances relating to Indian Oil Corporation by Haryana Urban Development Authority itself. This sale instance cannot be of any advantage to the claimants because a large chunk of land was allotted to the Indian Oil Corporation Authority after developing entire complex. Sector 16 was fully developed when allotted to Indian Oil Corporation. In other words, Haryana Urban Development Authority must have incurred heavy expenditure in development of the land providing facilities, roads, electricity etc. As such this sale instance cannot be treated to be a comparable piece of evidence for determination of compensation in the present case.
18. The learned Additional District Judge has fallen in error in computing the average price of the land in question at the relevant time. The cumulative effect of Ex.P.2, Ex.P.28, Ex.P.29, Ex.P.30, Ex.P.31, Ex.P.34 has been taken for determining the average. Firstly, Ex.P.29 could not be admitted in evidence because it was a sale deed which had been impugned by the concerned authorities. Thus, the value reflected in Ex.P.29 could not be taken into consideration in face of Ex.P.67 where the value of the land and consideration was determined to be approximately Rs. 250/- per square yard. The learned Additional District Judge has also fallen in error in not considering and discussing the effect of Ex.P.35, the award dated 22.3.1988. It has been repeatedly held by the Hon'ble Supreme Court that judgments of the courts form a valid basis for determining the amount of compensation in addition to the sale instances which may be available on record. In the case of Special Land Acquisition Officer, Kheda and Anr. v. Vasudev Chandrashankar 1998(1) All India Land Compensation Cases 234, the Hon'ble Supreme Court held as under:-
"It is now settled legal position that the award of the reference court relating to the same village of the similar land possessed of same quality of land potential offers a comparable base for determination of the compensation."
Reference can also be made in this regard to the case of the State of Madras v. A.M. Ranjan and Anr., A.I.R. 1976 Supreme Court 651.
19. The effect of above well settled principle of law is that Ex.P.35 which otherwise is a relevant piece of evidence ought to be considered by the Court while determining the amount of compensation payable to them. PW6 in his statement has clearly stated that the land acquired under Award No. 16 of 198788 dated 22.3.1988 is adjacent to the land acquired and was acquired for the purpose of construction of 100 feet wide road for approach to the Meena Bazar. The learned Counsel for the claimants argued that the land, subject-mater of E.P.35 was at a distance of nearly 600-700 square yards from the acquired land. While according to the learned Counsel appearing for the State, the location of the acquired land under Ex.P.67 and Ex.P.35 is different and acquisition is comparatively of smaller piece of land under Ex.P.35 and as such they cannot be treated as comparable instances of sale/awards relevant for the present case. However, the learned Counsel for the State was not able to show from any cogent evidence on record that the lands subject-matter of Ex.P.35 and Ex.P.67 are at a greater distance or otherwise were not relevant pieces of evidence to be considered by this Court. He relied upon the case of K.S. Shivadevamma and Ors. v. Assistant Commissioner and Land Acquisition Officer and Anr., 1996(2) Supreme Court Cases 62 in support of his contention.
20. As already noticed Ex.P.67 relates to the land which forms part of the acquired land and Ex.P.35 relates to the land which is few yards away from the acquired land but in the same revenue estate.
21. While objecting to the relevancy of Ex.P.67 the order passed by the Collector, the learned Advocate General, Haryana placed reliance upon the following observations of the Hon'ble Supreme Court of India in the case of K.S. Shivadevamma and other (supra):-
"This court also had held that the circulars issued by the Government under Section 47-A of the Stamp Act for fixation of stamp duty and the registration fee would not form basis to determine the compensation unless evidence is adduced as regards the prevailing market value of the land in the locality possessed of similar advantageous features. Even the Commissioner's assessment is his "best judgment assessment". Therefore, it cannot form the basis to determine the market value."
On the other hand, learned counsel appearing for the claimants have relied upon the following observations on the Hon'ble Supreme Court in the case of Jawajee Nagnatham v. Revenue Divisional Officer, Abilabad, A.P. Etc., 1994 L.A.C.C. 496 to contend that once the powers under Section 47-A of the Indian Stamp Act are exercised by the Collector after giving opportunity to the parties and determines the value of the land inter parties, in that event it would be the market value of the land to which the instrument relates:-
"We hold that the basic value of registration has no statutory base. It cannot form any basis to determine the market value of the acquired lands under Section 23 of the Act. The burden of proof is always on the claimant to prove in each case the prevailing market value as on the date of notification published in the State Gazette under Section 4(1) of the Act with reference to the sale deeds of the same lands or neigbhours lands possessed of same or similar advantages and features executed between wiling vendor and willing vendee or other relevant evidence in the reference court."
22. The learned counsel for the claimants referred to Section 47-A of Indian Stamp (Haryana Amendment) Act, 1973, in support of his contention, which reads as under:-
"Haryana - After Section 47 of the principal Act, the following new section shall be inserted and shall be deemed to have been inserted with effect from the 1st day of November, 1966, namely: -
"47-A. Instruments under-valued how to be dealt with- (1) If the Registering Officer appointed under the Registration Act, 1908, while registering any instrument transferring any property, has reason to believe that the value of the property or the consideration, as the case may be, has not truly set forth in the instrument, he may, after registering such instrument, refer the same to the Collector for determination of the value or consideration, as the case may be and the proper duty payable thereon.
(2) On receipt of reference under sub-section (1), the Collector shall, after giving the parties a reasonable opportunity of being heard and after holding an enquiry in such manner as may be prescribed by rules made under this Act, determine the value or consideration and the duty as aforesaid and the deficient amount of duty, if any, shall be payable by the person liable to pay the duty.
(3) The Collector may suo motu, or on receipt of reference from the Inspector General of Registration or the Registrar of a district, in whose jurisdiction the property or any portion thereof which is the subject-matter of the instrument is situate, appointed under the Registration Act, 1908 shall, within three years from the date of registration of any instrument, not already referred to him under sub-section (1), call for and examine the instrument, for the purpose of satisfying himself as to correctness of its value or consideration, as the case may be, and the duty payable thereon and if after such examination, he has reasons to believe that the value or consideration has not been truly set forth in the instrument, he may determine the value or consideration and the duty as aforesaid in accordance with the procedure provided for in sub-section (2), and the deficient amount of duty, if any, shall be payable by the person liable to pay the duty:
Provided that the Collector shall, within a period of two years from the date of the commencement of the Indian Stamp (Haryana Amendment) Act, 1973, also be competent to act as aforesaid in respect of the instruments registered on or after the first day of November, 1966 and before the first day of October, 1970.
(4) Any person aggrieved by an order of the Collector under sub-section (2) or sub-section (3) may, within thirty days from the date of the order, prefer an appeal before the District Judge and all such appeals shall be heard and disposed of in such manner as may be prescribed by rules may under this Act.
23. The language of the Section clearly indicates that where a document or instrument presented for registration and is referred to the Collector for determination, the Collector has to follow the procedure prescribed under the above provisions. The function of the Collector in such an event is of dual determination. Firstly, the Collector has to determine the market value of the land in question for the purpose of payment of stamp duty and then determine the duty payable thereupon. Both these determination must be preceeded by holding a due inquiry upon notice to the parties and giving them an opportunity to adduce evidence in support of their respective claim. Such an order is appealable under Section (4) of Section 47-A of the Act. In other words, an order of a Collector passed under Section 47-A (supra) cannot be equated to entries in the register maintained by the Registrar or the circular issued by the Government on its own. Provisions of Section 47-A do not vest any power in the State Government to issue circular or does not attaches any authenticity to the value indicated in the register maintained by the Registrar. The present case is one where acting as a quasi-judicial authority, the Collector has passed an order after hearing the parties and considering the evidence adduced on record and in exercise of statutory powers vested in the Collector.
24. The judgments relied upon on behalf of the State relates to the register maintained by the Registrar or the circular issued by the Government fixing the value of the land of that area. That is not the case here. In the present case, sale deed Ex.P.29 was presented for registration and was impounded. After giving notice to the parties and affording them opportunity to lead evidence, an order Ex.P.67 was passed fixing the value of the land at Rs. 30,000/- instead of Rs. 25,000/- and consequently directing payment of stamp duty on that valuation. Thus Ex.P.35 which was obviously inter-parties cannot be assumed to be an instance which is not relevant. The award No. 16 dated 22.3.1988 was based upon the evidence collected by the flying squad in relation to the land in question. The evidence adduced on behalf of the State before the Collector was thus the very foundation of determination of the value of land at Rs. 250/- per square yard approximately. In other words, having supported Ex.P.67 by way of evidence, the State cannot be permitted to turn back and say that the said order does not reflect the correct market value of the land in question. The State in fact would be stopped from challenging the correctness of the said order because neither of the parties to the said order assailed that order may further. The cumulative effect of this discussion, therefore, is that the order Ex.P.67 is a material piece of evidence which ought to be considered by the Court for determining the market value of the land in question.
25. I would consider that the application of principle of averages adopted by the learned Additional District Judge is in consonance with the settled principles of law. It has been repeatedly held that determination of fair market value of the acquired land on the date of notification under Section 4 should be computed on the principle of averages. Reference can be made to the following observations of the judgment of this Court in the case of Union of India v. Dr. Balbir Singh, (1999-2)122 P.L.R. 613 :-
"The petitioners have produced number of sale instances on record, but main reliance has been placed on Ex.P.20, P.23, P.50 and P.65. These sales are instances of small pieces of land varying from 242 square yards to above 302 square yards.. As already discussed above, they are relevant piece of evidence to be considered by the court while determining the amount of compensation. It is a settled principle of law that the claimants would be entitled to take benefit of the sale-deeds proved on record by them, which are otherwise admissible and relevant. The highest value indicated in different sale-deeds would certainly be a relevant factor to be considered by the Court. In Ex.P.20 which relates to the period 1982, much prior to the acquisition, land measuring 242 square yards was sold at the rate of Rs. 7,80,000/- per acre. Ex. P.50 which relates to June, 1989, immediately prior to the acquisition of the land, has indicated a value of Rs. 7,20,000/- per acre. The law of average would be fairly applicable in such circumstances because the value of the land even as per sale deeds above mentioned have been fluctuating towards decrease by a considerable margin during the periods for which the sale-deeds have been produced. In the case of Khushi Ram and Anr. v. The State of Haryana, 1988 L.A.C.C. 653, it was considered by Division Bench of this Court to apply the principle of average to reach at a fair conclusion."
"....The principle that the highest value of the land emerging from the sale instances should be fixed as the market value of the acquired land, was rejected by the Hon'ble Supreme Court of India in the case of Gulzara Singh and Ors. etc. v. State of Punjab and Ors., 1993 L.A.C.C. 612. In this very judgment the Hon'ble Court further held that the belting system would again be not appropriate methods of computation and it must be better based on the principle of average price. It could be relevant at this stage to refer to the following observations of the Hon'ble Apex Court:-
"That highest value should be fixed cannot be accepted in view of the consistent later view of this Court. In Collector of Lakhimpur's case (supra) this Court accepted the principles of average, but however, rejected the small extent of the lands and enhancement based on the average at Rs. 15,000/- per Bigha was reduced to Rs. 10,000/- per Bigha. In Smt. Kaushalya Devi's case (supra), this Court noted that large extent of land in the developed Aurangabad town was acquired from medical College, accepted the principle of average worked out by the reference court, varying between Rs. 2.25 to Rs. 5.00 per square yard and this Court ultimately fixed the market value at the rate of Rs. 1.50 per square yards. In Administrator General of West Bengal's case (supra) this court upheld rejection of the small plots of lands and accepted two sale-deeds of large extent working out the average rate at Rs. 500/- per Decimal and ultimately reference court fixed the market value at the rate of Rs. 200/- per Decimal. It is, therefore, clear that the court in the first instance has to determine as to which of the sale deeds are relevant, proximate in point of time and offer comparable base to determine market value. Thereafter the average price has to be worked out. It would be seen that this Court has taken consistent view of working out average and further deduction have been made in fixing just and fair market value when large chunk of the land was acquired. We respectfully agree and adhere to the principle and we find no compelling reason to divert the stream or arrest the consistence."
While enunciating this principle the Hon'ble Supreme Court quoted with approval the case of The Collector of Lakhimpur v. Bhuban Chandra Dutta, A.I.R. 1971 Supreme Court 2015.
Applying the above principles to the facts and circumstances of the present case, I am of the considered view that average of the following seven documents should be the basis for determining the fair market value of the land in question. Furthermore, the sale instances as well as the awards relate to the same land or the land immediately adjacent thereto and are relevant keeping in view the period of sale (within three years immediately preceding the notification). As such all of them are relevant pieces of evidence and can safely be termed as equi-comparable instance for such determination.
Exhibit Date of sale/ Area sold/ Sale price Sale, price No. award acquired Rs. per acre Rs P.2 21.06.1988 10 biswas 65,000.00 6,24,000,00 P.28 5.10.1988 05 biswas 36,250.00 6,96,000.00 P.29/67 16.11.1988 124 Sq. Yds. 25,000.00 9,75,000.00 P.30 01.12.1988 2 biswas 20,000.00 9,60,000.00 P.31 19.12.1988 250 Sq. Yds. 40,000.00 7,74,400.00 P.34 22.11.1988 2.5 biswas 16,250.00 6,24,000.00 P.35 22.03.1988 0.57 acres 475/- p.s.y. 22,99,000.00 TOTAL 69,52,400.00
26. Should there be any cut applied to the afore-determined fair market value of the acquired land? If yes, what would be the effect of the notification issued under Section 4 of the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963, as extended to the State of Haryana and hereinafter referred to as the Punjab Act?
As already noticed, the learned counsel for the claimants contended that the principle of cut ought not to be applied to the present acquisition because the area is surrounded by fully developed colonies and the sale instances proved by the claimants are distressed sales not depicting the true and fair market value of the land in question. On the other hand, the learned Advocate General, Haryana contended that instead of applying the cut of 40 per cent, the learned Additional District Judge ought to have applied 53 per cent cut on the calculated amount.
27. It is an undisputed fact that a notification/declaration under Section 4 of the Punjab Act was issued on 17.1.1978. Copy of the said notification has been proved on record as Ex.P.36. Once a notification is issued under Section 4 of the Punjab Act, various restrictions are imposed on the rights of the landowners in relation to the manner in which the land could be dealt with subsequent to the declaration. The Act itself was enacted to prevent haphazard and sub-standard development along the Scheduled Roads and in Controlled Areas in the State of Haryana.
28. Section 3 places a restriction on any person to erect or re-erect any building in the controlled area. Under Section 6, permission is required from the Director for any erection or re-erection, while Section 7 imposes a complete prohibition in relation to publication of the notification under Section 4(1). The Director again is empowered to grant permission under the provisions of Section 7. The claimants have brought on record evidence to show that the sale instances are not a free act on the part of the purchasers/sellers but have resulted from a feeling of distressed and dis-satisfaction. In this regard reference was made to the statements of PW14 Mr. Mukesh Kumar and -PW17, PW14 has stated that he had applied for the change of user of the land through a Society vide Ex.P.47, but the same was refused by the Director vide Ex.P.48. It has also come in evidence that the various persons had applied for permission to change the user and/or to raise construction, but these permissions were declined by the department. In other words right from 1978 the user and utility of this land remained restricted because of the notification Ex.P.36.
29. In spite of these facts it is very difficult to hold that the sales in question can be called as "distressed sales". May be they are the sales which were made by the sellers because the imposition of restrictions under the provisions of the Punjab Act at a price lower than the price which the sellers might have got if there was no such restrictions placed on the land in question. Thus, it has to be kept in mind that the restrictions placed under the Punjab Act vide notification Ex.P.36 would have certainly reduced general value of the land in the area, but they cannot be termed as distressed sales which would persuade the Court to consider that the prices reflected in the sale-deeds are of the minimum value. The sale instances are certainly a voluntary act on the part of the seller and purchaser. The sale deeds have been proved on record by producing either the seller or the purchaser and none of them had expressed the compulsion which resulted in the sale of the property. Having taken the benefit of selling the property at a given point of time, the claimant-landowners, purchasers or sellers are stopped from raising the plea to the contrary.
30. I do not consider the need of discussing this point in any further elaboration and would leave the issue at this stage with the observation that it is a factor which may be taken note of by the court but would never be a sole factor for determining the fair market value or terming the sale deeds in question as distressed sales,
31. The learned counsel for the claimants relied upon a judgment of this Court in the case of Khushi Ram and Anr. v. The State of Haryana through Secretary to Government, Haryana, Industries Department and Anr., 1988 All India Land Acquisition and Compensation Cases 653 to argue that where a land had been declared as a controlled area under the provisions of the Punjab Act, no curt should be applied to the determined value of the land. He relies upon the following observations of the Division Bench.
"The question that arises is whether arty reduction has to be made in the market price keeping in view the large area of acquired land than the land subject matter of the sale deeds Exhibits A.16 and A.17. The learned Advocate General, Haryana contended that a reduction of l/3rd should be made in the above referred price in view of the large area of the acquired land but we fail to agree with this contention as in view of the above referred notification of the State Government declaring the land to be controlled area, the prices of land were frozen. The ratio of the Supreme Court judgment in Smt. Kaushalya Devi Bogra and Ors. v. Land Acquisition Officer, Aurangabad and Anr., A.I.R. 1984 Supreme Court 892, is not attracted to the facts of the case in hand. In that case the Supreme Court has indicated some cases of that court where a reduction of 25 per cent was made and in other cases reduction of the market price of the sale transaction involving small tracts of land was made while assessing the market price of the large tracts of the acquired land. It was also held that in the very scheme for fixing of compensation provided under the Act there is bound to be some of arbitrariness."
He further relied upon the cases of The Doller Company, Madras v. Collector of Madras, A.I.R. 1975 Supreme Court 1670; Smt. Shiela Kapur v. State of Haryana through Collector, Karnal and Anr., (1989-2)96 The Punjab Law Reporter 353 and Bhagwathula Samanna v. Special Tahsildar and Land Acquisition Officer, 12 A.I.R. 1992 S.C. 2298. Reliance on the case of Bhagwathula Samanna was placed for two purposes, firstly that the smaller sale instances can also be relied upon by the Court and, secondly, the deduction of even 1/3rd would not be justified, much less 40 per cent that has been applied by the learned Additional District Judge. He relied upon the following observations of the Hon'ble Supreme Court in the same case:-
"The principle of deduction in the land value covered by the comparable sale is thus adopted in order to arrive at the market value of the acquired land in applying the principle it is necessary to consider all relevant facts. It is not the extent of the area covered under the acquisition, the only relevant factor. Even in the vast area there may be land which is fully developed having all amenities and situated in an advantageous position. If smaller area within the large tract is already developed and suitable for building purposes and have in its vicinity roads, drainage, electricity, communications etc. then the principle of deduction simply for the reason that it is part of the large tract acquired, may not be justified."
"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. If 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 for further development, the principle of deduction of the value for the purpose of comparison is not warranted."
32. On the other hand, the learned Advocate General relied upon the judgments of the Supreme Court in the case of K.S. Shivadevamma and Ors. v. Assistant Commissioner and Land Acquisition Officer and Anr., 1996(2) Supreme Court Cases 62, to contend that even the deduction of 53 per cent with further deduction for development charges was held to be justified by the Hon'ble Supreme Court of India. He also placed reliance upon the case of Raj Piari and Anr. v. Land Acquisition Collector, Solan and Ors., A.I.R. 1996 Supreme Court 3140, Chimanlal Hargovinddas v. Special Land Acquisition Officer, Poona and Anr., A.I.R. 1988 Supreme Court 1652 and Administrator General of West Bengal v. Collector, Varanai, A.I.R. 1988 Supreme Court 943. He lastly relied upon the recent judgment of the Supreme Court in the case of Hasanali Walimchand (dead) by LRs. v. State of Maharashtra, 1998(1) All India Land Acquisition and Compensation Cases 120, where the Hon'ble Supreme Court of India held as under:-
"The finding recorded by the High Court to the effect that there was no demand of any urban character in respect of the land in question is belied by the evidence on record. Indeed the land unlike the Housing Society Land was not developed and, therefore, proper course for the High Court would have been that it should have taken note of development charges and made some suitable deduction for the same. The reference court had made the Award based on the material on the record but had failed to notice that the acquired land was still undeveloped. It, therefore, appears appropriate to us to set aside the impugned judgment and order of the High Court and restore the award made by the reference court with the modification that out of the amount fixed by the reference Court @ Rs. 1/- per square foot, deduction to the extent of 50 paise per square foot, towards development charges, shall be made and compensation calculated on that basis and shall be paid to the claimants in accordance with their holdings, along with the statutory benefits of solatium and interest."
33. On a pervasive analysis of the above enunciated principles of law it appears that normally the cut should be applicable. However, its extent would vary on the facts and circumstances of each case. It is difficult to provide a straitjacket formula which would be universally applicable, but the guiding factor is that wherever the plots are developed or are surrounded by developed area and keeping in view the location and potential of the land would determine the element of deduction/cut applicable to that case. It cannot be belied from the record that the land in question is well located and has the potential, but at the same time, it cannot be ignored that the surrounding developed areas are a result of State activities or the development schemes carried out by the instrumentalities of the State.
34. The development in the area has to be carried out and stray existence of construction or its being surrounded by Meerut Road or G.T. Road bye-pass per se would not exclude the applicability of the principle of deduction. In other words, I am of the considered view that keeping in view the evidence on record, the contribution of the State, location and potential of the acquired land and charges on the account of development, some element of cut ought to be applied to the above fair value of the land.
35. The extent of cut would certainly be less than what has been applied by the learned Additional District Judge. The Court cannot absolutely ignore the factum of a declaration under Section 4 of the Punjab Act and it must take its due notice while considering the various factors for determining the fair market value. In view of the judgment of the Hon'ble Supreme Court of India and more particularly in the case of Bhagwathula Samanna (supra) and K.S. Shivadevamma (supra) I am not able to hold that the declaration under Section 4 of the Act would by itself be the sole ground for not applying the principle of deduction/cut to the afore stated value, in the facts and circumstances of this case.
36. Having cogitated over the facts and circumstances of this case, evidence on record and applying the principles enunciated by the Hon'ble Supreme Court of India in the cases referred above, I feel that the cut of 30 per cent could be applied to the present case. Thus, the fair market value of the land at the time of acquisition of the land in question should be Rs. 145.00 (Rs.205.00 - Rs. 61.00 = Rs. 145.00) per square yard. The Hon'ble Supreme Court of India in the case of State of M.P. v. Harishankar Goel and Anr., 1996(1) Land Acquisition Laws 438 has held that the compensation can be paid in square yards even in large acquisitions. Thus, I have determined the cases on the same basis as the learned Additional District Judge has determined the compensation payable at the rate of Rs. 90/- per square yard.
37. After determining the fair market value of the lands as on the date of acquisition which would be universally applicable to all these appeals filed either by the claimants or by the State, I would proceed to discuss the case of Smt. Bindu Garg in relation to the enhancement of compensation in regard to trees and superstructures. The claimants were awarded a sum of Rs. 7,800/- by the Land Acquisition Officer. This compensation was enhanced to Rs. 2,75,000/- by the learned Additional District Judge. However, the claim of the claimants in relation to superstructures and the trees was to the extent of Rs. 20,00,000/-. The learned counsel for the claimants has contended that the claimants were entitled to receive the compensation to the extent of Rs. 2,00,000/- as claimed by them in regard to superstructures in land and the learned Additional District Judge has called in error in awarding the lesser amount.
38. In order to claim higher amount of compensation the counsel relied upon the statements of PW6 Brij Mohan, PW12 Dr. K.P.S. Chauhan and PW13 Jia Lai. PW12 and PW13 had produced the valuation reports on record being Ex.P.41 to Ex.P.43. On these reports and statements of witnesses the claimants claim the higher amount of compensation than the one awarded.
39. It needs to be noticed that the State examined RW1 to RW3 who gave the valuation reports of much lesser amount than what was reflected in the reports Ex.P.41 to Ex.P.43. The State also gave no objection to the appointment of the Local Commissioner. The Court appointed the Local Commissioner, who submitted his report Ex.P.65. The amount indicated in Ex.P.65 was higher than the amount shown in the reports submitted by the respondents, but lower than the reports submitted by the claimants. Ex.P.65 had shown the value of compensation being payable to the extent of Rs. 4,73,869.00. The report of the Local Commissioner was discussed in detail by the learned Advocate General in comparison with other reports on the record more particularly the reports submitted on behalf of the respondents. It would be appropriate at this stage to make a reference to the findings recorded by the learned Additional District Judge in this behalf:-
"L.A.C. 158 of 1992:
......The petitioners got a local Commissioner appointed through the Court and Shri Vinod Kumar, D.F.O. was appointed as Local Commissioner who submitted his report Ex.P.65. No objections were filed by the respondents against the report. The Local Commissioner assessed the value of the trees in existence in the land of the petitioners at Rs. 4,73,850/-. The respondents to controvert the findings of Local Commissioner have examined Jasbir Singh, S.D.O. RW4, who deposed on oath that on having receipt letter Ex.R.6 from the Land Acquisition Officer, he went to the spot alongwith L.A. Patwari and Junior Engineer of the department and other officials."
".....He did not contradict the report of Local Commissioner Ex.P.65 made by D.F.O. Karnal. He also admitted that he did not assess the value of the trees which were in existence in the land of Parveen Gupta, Anu Gupta, Parul Gupta, Anshul Gupta, Shruti Gupta and Aditi Gupta, who are all petitioners in L.A. Case No. 158 of 1992, having more than half share in the acquired land of that case i.e. 27/40 share. Therefore, the report given by RW4 Ex.R.7 in L.A. Case No. 158 of 1992 cannot be accepted."
".....Some exaggeration while assessing the value of the trees by the Local Commissioner in his report Ex.P.65 cannot be ruled out. He has assessed total value of the trees in L.A. Case No. 158 of 1992 in the tune of Rs. 4,73, 869/-. The major portion of valuation is in respect of trees which were found cut at the spot. Considering all these circumstances, though, I accept the report of local commissioner Ex.P.65 yet taking into consideration that bulk of the trees were found cut at the spot, I reduce the compensation assessed by the Local Commissioner in his report Ex.P.65 to Rs. 2,75,000/- instead of Rs. 4,73,869/- as suggested by him in respect of the trees which were in existence in the acquired land of L.A. Case No. 158 of 1992."
"LA.C Case No. 160 of 1992:
".....Another witness examined by the respondents in this respect is RW5 Jai Pal Patwari who in his cross-examination stated that the Land Acquisition Collector awarded compensation for some of the trees and for some of the structures and a supplementary award was to be made in respect of remaining trees and structures. No such supplementary award was ever produced by the respondents. All these facts show that the valuation of trees in L.A. Case No. 160 of 1992 was not correctly assessed by RW4 Jasbir Singh, SDO. As far as report given by PW14 K.P.S. Chauhan (Ex.41) regarding valuation of trees in L.A. Case No. 160 of 1992 is concerned, the possibility of some exaggeration while assessing the value of the trees cannot be ruled out. Considering all these circumstances, I award compensation in respect of trees both non-fruit bearing and fruit bearing in the tune of Rs. 4,50,000/- in Mukesh Chand's L.A. Case No. 160 of 1992. Hence, both these issues are decided accordingly."
".....Considering all these facts and circumstances of the present case, I hold that there existed tubewell and superstructures in the acquired land and the petitioners in this case are entitled to compensation in respect of the same in the tune of Rs. 50,000/-. Hence, this issue is decided accordingly in favour of the petitioners and against the respondents."
"L.A.C. No. 158 of 1992:
.....Though G.S. Kalra, SDO, the Local Commissioner appointed by the Court has suggested valuation of the superstructures tubewells, water channel etc. in the tune of Rs. 73,716/- yet the possibility of exaggerated assessment on the part of Local Commissioner cannot be entirely rules out. Considering all these circumstances, I hold that superstructures were in existence in the acquired land of L.A. Case No. 1598 of 1992 and I grant compensation for the superstructure in the tune of Rs. 50,000/- to the petitioners of L.A. Case No. 158 of 1992. Hence, both these issues are decided in favour of the petitioners and against the respondents."
".....Rather, RW5 Jai Pal, Patwari in his cross-examination admitted that the land of Brij Mohan and other petitioners had approach road from two sides prior to acquisition but after acquisition, the unacquired portion has no approach. In view of these circumstances and in view of the authority 1988(2) PJL.R. 695 (supra), I hold that the petitioner Brij Mohan etc. are entitled to 30% of the market value of the unacquired land by way of damages for its severance from the acquired land in addition to the market value of the acquired land. Hence, this issue is decided in favour of the petitioners and against the respondents."
40. Despite above findings the learned counsel appearing for the claimants argued that the compensation payable by way of damages on account of severance of the un-acquired land belonging to the claimant, Brij Mohan was entitled to get atleast 50 per cent of the awarded value in relation to the unacquired land. For this purpose, he has placed reliance upon the cases of Punjab State through Land Acquisition Collector, Punjab Colonization Department, Chandigarh v. Gurbachan Singh and Ors., (1988-2)94 P.L.R. 695; State of Punjab through Collector Mukerian Hydel Channel Project, Talwara v. Amar Nath and Ors., 1988 L.A.C.C. 310; Sfafe of Punjab v. Mohan Lal and Ors., (1997-3)117 P.L.R. 845 and Smt. Narinder Kaur v. The State of Punjab and Ors., (1980)82 P.L.R. 473. In the above judgments this Court had taken the consistent view that where the acquired land had rendered the unacquired land completely inaccessible and a total loss, the measure of damages by severance, undoubtedly be the diminution in the value of the acquired land and the owner is entitled to at least 50% of the market rate of the unacquired land on account of damages. The total land acquired belonging to this claimant was 54 bighas, out of which 39 bighas was acquired leaving 14.17 bighas as unacquired which has been rendered inaccessible. Furthermore, Jaipal RW5 in his cross-examination has clearly admitted that the land of Brij Mohan had access on two sides, but after acquisition the land became inaccessible.
41. No judgment to the contrary has either been mentioned in the judgment of the learned of the learned Additional District Judge nor was pointed out by the learned Advocate General, Haryana. Resultantly, following the consistent view of this Court I would also award 50% of the market value of the land measuring 14.17 bighas (i.e. the unacquired land). In other words, the claimant Brij Mohan would be entitled to 50% of Rs. 145.00 per square yard for 14 bighas 17 biswas. Except this limited relief the claimants are not entitled to any other relief.
42. I am unable to see any error in the view expressed by the learned District Judge. The valuers produced by the claimants are bound to support the case of the claimants and the possibility of their giving exaggerated figures cannot be ruled out. The decision of the Court in this regard must be based on some reliable and cogent evidence. The learned Additional District Judge relying upon the judgment of this Court had decided to accept the report of the Local Commissioner while varying that amount to some extent. Such application of mind or exercise of judicial discretion cannot be termed as arbitrary. The discretion has been exercised in consonance with the settled principles of law and I do not wish to take any different view than expressed by the learned Additional District Judge. Consequently, I would maintain the amount of compensation awarded for trees and superstructures in this case.
43. The learned counsel appearing for their respective clients (claimants) and the learned Advocate General, Haryana, have specifically stated that they do not press either increase or reduction of the amount of compensation, awarded by the learned Additional District Judge, Karnal for superstructures and trees etc. in any other case except the ones specifically dealt with in this judgment or in the case of Raghbir Singh.
44. As a sequel on the above discussion, the appeals preferred by the claimants are partly accepted and the compensation of the land acquired, is hereby enhanced from Rs. 90/- per square yards to Rs. 145/- per square yards. All the appeals preferred by the State are dismissed. The claimants shall be entitled to the statutory benefits provided under Section 23(1-A), 23(2) and 28 of the Land Acquisition Act. In the facts and circumstances of the case, there shall be not order as to costs.