JUDGMENT Swatanter Kumar, J.
1. These 42 Regular First Appeals arise from a common judgment/award passed by the learned Additional District Judge, Rohtak dated 3rd February, 1990. Vide this judgment, learned Reference Court had answered 21 references under section 18 of the Land Acquisition Act (hereinafter referred as the Act).
2. Against that judgment, the State has preferred 21 appeals challenging the finding recorded in all the 21 references on the plea that the compensation awarded to the claimants is unreasonably excessive.
3. On the other hand, the claimants have preferred 20 appeals impugning the same judgment and had prayed for further enhancement of the amount of compensation awarded to them. As all these appeals are based upon common premise of facts, evidence and law, it will be appropriate to dispose of these appeals by a common judgment.
4. In some of the appeals counsel for the claimants have not appeared despite the fact that these appeals have been on regular list for a considerable period and were kept part heard for 16th February, 2000. Under the circumstances, the Court is left with no alternative, but, having heard senior counsel appearing for other claimants and counsel for the State and Marketing Committee, to proceed with the judgment.
5. The Government of State of Haryana has issued a notification under section 4 of the Act on 8th October, 1985 proceeded by another notification under section 6 of the Act dated 12th June, 1986 acquiring 37 acres, 6 kanals and 8 marlas land in village Meham, District Rohtak. However, actual land acquired, possession of which taken, was 24 acres, 5 kanals and 19 marlas and the award of the land Acquisition Collector dealt with this limited land.
6. This land was acquired for establishment and construction of a new Grain Market, Rest House and other buildings around that area. Learned Land Acquisition Collector, vide his award dated 30th September, 1987 awarded the following compensation to the claimants, depending upon the nature of the land owned by each of the claimants.
Nehri/Chahi land Rs. 25,000/- Gair Mumkin Rs. 20,000/- Barani land Rs. 15,000/- 7. The claimants felt dissatisfied with the extent of the amount of compensation awarded to them for acquisition of their respective lands. They preferred references under section 18 of the Act for enhancement of compensation.
8. As already noticed, the learned Additional District Judge, Rohtak, vide his judgment dated 3rd February, 1990 disposed of 21 references by doing away with the categorisation of the land and awarded uniform rate of compensation to all the claimants at the rate of Rs. 1,44,000/- per acre. This judgment has given rise to the present 42 Regular First Appeals.
9. Before entering into the merits of these appeals, reference to the basic evidence available in support of their case PW. 1 to PW.7 which included the claimant PW.1 Ishwar Pal Singh, Patwari, who produced copies of the jamabandi and mutation, exhibits P.1 to P.4. PW.2. Mohinder Singh who proved exhibit P.5, PW.7 Rajinder Kumar, who proved sale deed exhibit P.5/A. The site plan exhibit P. 10 was proved by PW.2. In addition to this evidence, exhibits P.6, P.9, P.6/A and R.6/B, sale deeds were tendered in evidence by the claimants.
10. The respondents in response to the evidence led by the petitioners-claimants examined only one witness, R.W.1. Jamiat Singh, who produced sale deed Exhibit R.1 and Akshajra exhibit R.3. The respondents also tendered on record a judgment, exhibit RX, passed by the learned Additional District Judge, dated 1st February, 1989 for acquisition of the land in village Hasanpur vide notification dated 6th January, 1977.
11. At the outset, it must be noticed that the sale deeds tendered in evidence either by the claimants or by the State were not proved in accordance with law by examining vendor and vendee and as such are not admissible in evidence as per law enunciated by the Hon'ble Supreme Court of India-in the cases of A.P. State Road Transport Corporation v. P. Venkaidh and Ors., A.I.R. 1997 S.C. 2600 and Special Deputy Collector and Anr. v. Kurra Sambasiva Rao and Ors., A.I.R. 1997 S.C. 2625.
12. Resultantly, exhibits R.1, P.6 to P.9, PW6/A and PW6/B cannot be taken into consideration as the authenticity of the documents and genuineness of the documents proved therein has not been proved in accordance with law, as already noticed above.
13. With the exclusion, of the above evidence, the Court is left with Only two sale instances, exhibits P.5 and P.5/A. Exhibit P-5 was proved by PW,2 Mohinder Singh, exhibit P.5/A was proved by PW.7 Rajinder Kumar. The claimants did not tender any judgment or award of the Court in support of their claim.
14. Learned Additional District Judge, while relying on the average of all sale deeds i.e. exhibits P.5 to PW.6/A and applying nearly 2/3rd cut, granted the aforestated compensation to the claimants. Reference can be made to the findings recorded by the learned Reference Court, which reads as under:-
"15. Now we are left with the sale-instances Ex.P.5 to Ex.P9, Ex.PW5/A and Ex.PW6/A. The average market price of the aforesaid sale-deeds can be worked out approximately at Rs. 3,25,000/- per acre. There are the sale deeds Ex.P.5 land Ex.P.7, of the year 1982, whereas the property acquired was notified for acquisition for the year 1985. However, no upward trend in the prices can be seen if we look at the sale deeds of the year 1984 and 1985. These sale instances are of the land sold from the land acquired. However, the property sold vide these sale-deeds is very small in area and the property acquired by the Government is a very big piece of land measuring as 24 acres 5 kanals and 19 marlas. The price which can be available for a small piece of land and abutting the National Highway, (the instances of aforesaid sales being of the land abutting Delhi-Hisar road as shown in Ex.P. 10) cannot be applied and taken as index for the price of big piece of land. For assessing the price of big pieces of land one third cut on this average price can be applied. Thus, reducing the average price by Rs. 1,08,000/- at rounded figure, the average would come to Rs. 2,17,000/- per acre.
16. Although the land acquired is not running into thousands of acres in which the same can be divided into blocks, to assess as uniform price for this land a cut has also to be applied as the entire land is not abutting the National Highway. Applying another cut of one-third and, thus reducing the price by Rs. 73,000/- per acre, the rate would come to Rs. 1,44,000/- per acre."
15. As far as exhibit RX is concerned that has rightly not been relied upon by the learned trial Court, as it relates to the acquisition of land in the year 1977 i.e. nearly 8 years prior to the present acquisition. The judgment of the Court would certainly be a relevant piece of evidence but in that matter it must be shown that it is a comparable instance. Comparability must be construed in its wider scope and not in a limited manner. Its relevancy must be determined in regard, to the time, location, potentiality and equality in application of other general principle applicable to acquisition of land.
16. It is also stated at bar that Maham is at quite distance from the land acquired forming subject matter of exhibit RX. Before I proceed to discuss' whether the application of cut/deduction at nearly 66% is justified in the facts and circumstances of the present case and it ought to have been only 20% as contended by the learned .counsel for the claimants or it should have been even more at least 68-70% as contended by the learned counsel for the State, it will be proper for this Court to advert to the location and potential of the acquired land. PW.3, PW.4 and PW.6 have stated in regard to the potentiality and location of this land. Their evidence is material. PW.3 stated as under:
"The acquired land was surrounded by roads from three sides one of which is a National Highway I.T.I., College, Tehsil Campus, Bus-Stand, Power House and Arya Nagar are near to this place. This place war, very valuable to us. At the time of acquisition the rates of the land was Rs. six lakhs per acre. Now the land near to our land is being sold from Rs. 500/- per square yard to Rs. 1,500/- per square yard. Due to this acquisition my land has been bifurcated into pieces and on this amount the value of my remaining land has been reduced."
17. PW.4 made a clear statement that his land, which was part of the acquired land, was situated in the Municipal limits of Town Meham. PW.6 made a reference to the buildings and development around the acquired area. It must be noticed that no effective cross-examination was conducted of these witnesses. In fact, they were not even put any suggestion to say that the above particular facts were untrue as per the site. Exhibit P. 10 is the site plan proved by PW.2. Exhibit P.10 shows the acquired land in red, yellow and blue colour. Part of the acquired land in blue and green colour abut the National Highway-10 i.e. Delhi-Hisar Road, while part of the acquired land shown in orange colour abuts bye pass road Ganga Nagar, General Bus Stand is shown to be near to the acquired land. It is also indicated that there is industrial Institute at Meham near the acquired land. Shops have been built on the main road. There is petrol Pump and abadi of Arya Nagar, Meham and houses are constructed thereon, which is adjacent just to the acquired land. Exhibit R.3 is ak-shjra and indicates nothing more than acquired land. RW.1 Jamiat Singh in his examination-in-chief, stated that new Bus Stand Meham was near the land in dispute and has not referred to any material facts in relation to the matter in controversy.
18. The inescapable conclusion from the above discussion is that the 'acquired land has a reasonable potential and good location. Once the land in question is of that kind and even the part of the land is stated to be within Municipal limits, it will be difficult for the Court to approve deduction of such high percentage. Reverting back to the sale deeds on record, the learned Reference Court could not have taken into consideration any other sale deeds except Exhibit P.5 and PW5/A. Other documents were inadmissible in evidence, as already noticed. The average of exhibits' P.5 and PW5/A comes to Rs. 3,68,000/- per acre. Exhibits P.5 and PW5/A otherwise give a reasonable basis for determination of the final amount to be paid to the claimants. In fact, exhibit PW5/A is nearly more than one year prior to the notification and Would be a safe guide, while P.5 relates to 1982 which show increase in price over 2-1/2 years.
19. One fact Which cannot be ignored by the Court is that both exhibits P.5 and PW 5/A relate to acquisition of land measuring 310-320 square yard. Such small pieces are not safe guide for determining fair market value of the acquired land. The land acquired is more than 24 acres and thus reasonable deduction has to be made for the sale instance being small piece of land.
20. 'The ancillary but necessary question that arises therefrom is what further deduction should be made on account of development charges, huge acquisition, one time expenditure by the State and other incidental factors which have settled and enunciated by the Hon'ble Supreme Court in different cases and element of deduction varied from 15% to 78% depending on the facts and circumstances of the case, Reference in this regard can be made to the judgments of the Hon'ble Supreme Court in the case The State of M.P. etc. v. Harishankar Goel and Anr. etc ,1996 LA.C.C. 615, and K.S. Shivadevamma and Ors. v. Assistant Commissioner and Land Acquisition Officer and Ors., 1996 S.C.C. 62.
21. Learned counsel appearing for the claimants, while relying upon the case of Union of India v. Balbir Singh, (1999-2)122 P.L.R. 613, contended that the deduction of even 25% would be more justified in the facts and circumstances of the case.
22. On the other hand, learned counsel appearing for the State and committee, while relying on the case of Jhandoo (Dead) by LRs and Ors. v. Union of India, 1997(1) L.A.C.C. 402, contended that at least 1/3rd cut should have been applied for the development charges and similar cut should have been applied for small pieces.
23. As far as the arguments of the learned counsel for the State is concerned, there would not be any merit in the State appeals because the, learned Judge has already applied 1/3rd cut for small pieces and further 1/3rd cut for development charges etc. as such, learned counsel for the State fairly contended that nothing more can be pressed as far as State is concerned.
24. In the case of Dr. Balbir Singh's case (supra), land was acquired in District Sirsa and there was positive evidence produced by the claimants in regard to high prices of land and also in relation to location and potentialities of the land in the facts of the case and after considering various judgments of the Hon'ble Supreme Court, the Court came to the conclusion that cut of 20% was reasonable deduction. This per se cannot be applied to the present case.
25. No doubt some of the judgments referred in Balbir Singh's case, even the judgments of the Division Bench of this Court and the Supreme Court in the case of Bhagwathula Samanna v. Special Tehsildar and Land Acquisition Officer, 1992(1) R.R.R. 256 it has been held that in case of developed land in given circumstances, no cut need to be applied.
26. Keeping in view the location and potential, developments around the area and other oral as well as documentary evidence on record, I am of the considered view that deduction of 50% would be just and fair on both counts firstly on account of small pieces and secondly for development charges of the area and other incidental factors. The net result of this is that the claimants would get Rs. 3,68,000/- per acre minus 50% = Rs. 1,84,000/- per acre (Thus, increase of more than Rs. 40,000 per acre on the award amount by the Reference Court). Such awarding of compensation can also be traced on the basis of exhibit RX. Even for the sake of arguments, it is taken that exhibit RX can be taken into consideration, in which acquired land relates to village Hassanpur, which falls in District Rohtak and is abutting National Highway between Bahadurgarh and Rohtak, still compensation in that at the rate of Rs. 15/- per square yard was awarded for acquisition of land in the year 1977, which comes to Rs. 38/- per square yard for acquisition in the year 1985. The respondents have not even cared to lead any evidence to show that RX in terms of potential and location or market value was better placed land than the land acquired by the present notification.
27. Resultantly, all the appeals filed by the State are dismissed without any order as to costs, whereas the appeals preferred by the claimants are apparently accepted limited to the extent aforestated. All the claimants would be entitled to Rs. 1,84,000/- per acre with statutory benefits as provided under sections 23(1-A), 23(2) and 28 of the Act. The claimants would also be entilted to proportionate costs on the enhanced amount.