Allowed

Swaroopa and Others v. State of U.P.

Allahabad HC6 Mar 2019FAPL/126/1989

Case brief

AI extract

What is this about?

Appears in multiple first appeals challenging the adequacy of compensation for land acquired in 1980. The court held that market value must be ascertained as of the date of Section 4(1) notification. Determining the rate by applying a fixed 15% annual escalation to a verified sale deed exemplar, fixing compensation at Rs.25,375/- per bigha.

What did the court decide?

Market value of the acquired land determined, all first appeals disposed of, and impugned judgment of the reference court modified.

Swaroopa and Others Vs State of U.P. — Land Acquisition | Allahabad HC (2019)

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Court No. - 59

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Case :- FIRST APPEAL No. - 126 of 1989

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Appellant :- Swaroopa And Others Respondent :- State Of U.P. Counsel for Appellant :- M.D. Singh Shekhar,Shailesh Upadhyay Counsel for Respondent :- S.C.

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Case :- FIRST APPEAL No. - 1164 of 1988

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Appellant :- Om Prakash Respondent :- State Of U.P. Counsel for Appellant :- Kr.R.C.Singh,Ajit Kumar,Durg Vijay Singh

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Case :- FIRST APPEAL No. - 127 of 1989

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Appellant :- Chatter Singh Respondent :- State Of U.P. Counsel for Appellant :- M.D. Singh Shekhar,Ram Dayal Tiwari Counsel for Respondent :- SC

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Case :- FIRST APPEAL No. - 890 of 1989

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Appellant :- Bale And Another Respondent :- State Of U.P. Counsel for Appellant :- M.D. Singh Shekhar,R.N. Singh,S.N. Singh,Shailesh Upadhyay,Shiv Kant Mishra Counsel for Respondent :- SC

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Case :- FIRST APPEAL No. - 892 of 1989

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Appellant :- Teka Died Karam Singh And Others Respondent :- State Of U.P. Counsel for Appellant :- M.D. Singh Shekhar,R.D. Tiwari,Shailesh Upadhyay Counsel for Respondent :- S.C.

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Case :- FIRST APPEAL No. - 909 of 1989

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Appellant :- Bhagirath And Others Respondent :- State Of U.P. Counsel for Appellant :- M.D. Singh Shekhar Counsel for Respondent :- S.C.

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Case :- FIRST APPEAL No. - 1218 of 1990

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Appellant :- Bal Kishan Respondent :- State Of U.P. Counsel for Appellant :- R.C. Singh,Madnesh Prasad Singh,Shailesh Upadhyay Counsel for Respondent :- Standing Counsel

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Case :- FIRST APPEAL No. - 877 of 1993

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Appellant :- Bansa And Another

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Respondent :- State Of U.P. Counsel for Appellant :- M.D. Singh Shekhar,R.D. Tiwari,Shailesh Upadhyay

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Case :- FIRST APPEAL No. - 878 of 1993

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Appellant :- Gainda And Another Respondent :- State Of U.P. Counsel for Appellant :- M.D. Singh,M.D.S.Shekhar,R.D. Tiwari,Shailesh Upadhyay Counsel for Respondent :- C S C,Shivam Yadav

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Case :- FIRST APPEAL No. - 80 of 1995

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Appellant :- Muse Ram Respondent :- State Of U.P. Through Collector Ghaziabad Counsel for Appellant :- N. Lal

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Case :- FIRST APPEAL No. - 79 of 1995

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Appellant :- Shishi Ram Respondent :- State Of U.P. Counsel for Appellant :- N. Lal,V. Prakash,Yogesh Tiwari Counsel for Respondent :- Kaushlendra Nath Singh

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Case :- FIRST APPEAL No. - 368 of 1995

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Appellant :- Ganeshi Respondent :- State Counsel for Appellant :- N.Lal,Yogesh Tiwari

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Case :- FIRST APPEAL No. - 370 of 1995

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Appellant :- Ram Pal Respondent :- State Counsel for Appellant :- N.Lal

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Case :- FIRST APPEAL No. - 369 of 1995

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Appellant :- Bhadai Respondent :- State Of U.P. Counsel for Appellant :- N.Lal,Yogesh Tiwari

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Case :- FIRST APPEAL No. - 90 of 2000

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Appellant :- Batasi Respondent :- State Of U.P. Counsel for Appellant :- Prabhakar Vardhan,K.Singh,Prabhakar Vardhan

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Case :- FIRST APPEAL No. - 206 of 2000

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Appellant :- Shiv Lal Respondent :- State Of U.P.

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Counsel for Appellant :- N.Lal,Yogesh Tiwari

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Case :- FIRST APPEAL No. - 205 of 2000

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Appellant :- Khazan Respondent :- State Of U.P. Counsel for Appellant :- N. Lal

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Case :- FIRST APPEAL No. - 22 of 2008

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Appellant :- Jora Respondent :- State Of U.P. Counsel for Appellant :- N. Lal,Yogesh Tiwari Counsel for Respondent :- S.C. 19. Case :- FIRST APPEAL No. - 233 of 2008

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Appellant :- Banwari Respondent :- State Of U.P. Counsel for Appellant :- M.D. Singh Shekhar,Shailesh Upadhyay Counsel for Respondent :- R.P. Tiwari

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Hon'ble Surya Prakash Kesarwani,J.

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Heard Sri D.V. Singh, Sri Shailesh Upadhayay, Madnesh Prasad Singh, Yogesh Tiwari, learned counsels for the appellants and Sri Girish Vishwakarma, learned counsel for the Staterespondents.

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Briefly stated facts of the present case are that by notification dated 19.12.1980 published in the U.P. Gazette on 28.03.1981, 782-1-15 bighas land of village Chhalera Bangar, Pargana and Tehsil, District Ghaziabad (Gautam Budh Nagar) was acquired. Notification under Section 6(1) of the Act dated 09.01.1981, was published in U.P. Gazette on 28.03.1981. The Special Land Acquisition Officer passed the award on 10.05.1982 determining the compensation @ Rs.17,000/- per bigha on the basis of the sale deed exemplar of plot No.177 of the same village. Dissatisfied with the award, large number of land owners

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filed references under Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act), which were collectively decided by the reference court by the impugned judgment dated 23.05.1988, the leading L.A.R. being L.A.R. No.496 of 1982 (Teka vs. State). The Reference Court determined the compensation @ Rs.21,000/- per bigha after adding Rs.4000/- per bigha as escalation in price. Aggrieved with the aforesaid judgment of reference court dated 23.05.1988 passed by the District Judge, Ghaziabad, the present first appeals have been filed.

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Learned counsels for the appellants jointly submit as under:-

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(i) Market value of the acquired land determined by the reference court is inadequate.

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(ii) In Mohkam and another vs. State of U.P. (First Appeal No.310 of 2008, decided on 16.02.2015), compensation of land of one of land-holder whose land was also acquired under the same acquisition was determined @ Rs.297/- per square yard relying upon the decision in the case of Khazan and others vs. State of U.P., (First Appeal No.564 of 1997) decided on 11.10.2012 and, therefore, the appellants are also entitled to the same compensation at the same rate.

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(iii) In the case of New Okhla Industrial Development Authority (NOIDA) vs. Dev Karan and others , (Civil Appeal No.4879 of 2018, decided on 01.05.2018), Hon'ble Supreme Court has determined the compensation for the acquired land in the year 1980 at Rs.125/- per square yard and, therefore, appellants are entitled for compensation at a minimum rate of Rs.125/- per square yard.

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Learned Standing Counsel supports the impugned judgment.

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I have carefully considered the submissions of learned counsels for the parties.

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So far as the submission of learned counsels for the appellants relying upon the judgment in the case of Mohkam and others (supra) is concerned, it is relevant to mention that the acquisition involved in the present appeal was made on 19.12.1980 and the notification under Section 4(1) was published in the Gazette on 28.03.1981, while the judgment in the case of Mohkam and another (supra) , merely follows the judgment in the case of Khazan and others (supra) which relates to the acquisition of land of some other village made in the year 1988 or thereafter.

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Therefore, the appellants are not entitled for benefit of the aforesaid judgment in view of the provisions of Section 23(1) of the Act. In Chiman Lal Hargovinddas v. Special Land Acquisition Officer, Poona and another, (1988)3 SCC 751 (para-4) Hon'ble Supreme Court laid down broad principles to be followed in the case of determination of compensation of land acquired under Section 4 of the Act, which has been consistently followed and has also been followed in a recent decision in Manoj Kumar and others vs. State of Haryana and others, (2018) 13 SCC 96 (Para 25). Para 4 of the judgment in Chmanlal Hargovind Das (supra) is reproduced below:-:

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“4. The following factors must be etched on the mental screen:

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(1) A reference under section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition officer in his Award unless the same material is produced and proved before the Court.

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(2) So also the Award of the Land Acquisition officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the Court hearing the Reference. It is merely an offer made by the Land Acquisition officer and the material utilised by him for making his valuation cannot be utilised by the Court unless produced and proved before it. It is not the function of the Court to sit in appeal against the Award,approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion

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reached by the Land Acquisition officer, as if it were an appellate court.

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(3) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it.

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(4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose.

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(5)The market value of land under acquisition has to be determined as on the crucial date of publication of the notification under Section 4 of the Land Acquisition Act (dates of Notifications under sections 6 and 9 are irrelevant).

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(6)The determination has to be made standing on the date line of valuation (date of publication of notification under Section 4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price.

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(7) In doing so by the instances method, the Court has to correlate the market value reflected in the most comparable instance which provides the index of market value.

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(8) Only genuine instances have to be taken into account. (Some times instances are rigged up in anticipation of Acquisition of land).

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(9) Even post notification instances can be taken into account (1) if they are very proximate,(2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development

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prospects.

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(l0) The most comparable instances out of the genuine instances have to be identified on the following considerations: (i) proximity from time angle,

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(ii) proximity from situation angle.

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(11) Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-avis land under acquisition by placing the two in juxtaposition.

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(12) A balance-sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchaser would do.

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(13) The market value of the land under acquisition has there after to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors.

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(14) The exercise indicated in clauses (11) to (13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors:

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Plus factors

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1. smallness of size

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2. proximity to a road

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3. frontage on a road

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4. nearness to developed area

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5. regular shape

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6. level vis-a-vis land under acquisition

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Minus factors

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1. largeness of area

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2. situation in the interior at a distance from the Road

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3. Narrow strip of land with very small frontage compared to depth

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4. lower level requiring the depressed portion to be filled up

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5. remoteness from developed locality

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6. some special disadvantageous factor which would deter a purchaser

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7. special value for an owner of an adjoining property to whom it may

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have some very special advantage

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(15) The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds cannot be compared with a large tract or block of land of say l0000 sq. yds or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approximately between 20 percent to 50 percent to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be looked up, will be longer or shorter and the attendant hazards.

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(16) Every case must be dealt with on its own fact pattern bearing in mind all these factors as a prudent purchaser of land in which position the Judge must place himself.

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(17) These are general guidelines to be applied with understanding informed with common sense.”

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(Emphasis supplied by me)

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In the case of Bhupal Singh and others Vs. State of Haryana (2015) 5 SCC 801, Hon'ble Supreme Court specifically considered similar question of determination of market value under Section 23 of the Act and held that fair market value of the acquired land is required to be determined on the basis of market rate of the adjacent lands similarly situated to the acquired lands prevailing on the date of acquisition or/ and prior to acquisition but not subsequent to the date of acquisition. Para 27 of the judgment in the case of Bhupal Singh

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and others (supra) is reproduced below:

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"27. As rightly argued by learned counsel for the respondent, the fair market value of the acquired land is required to be determined under Section 23 of the Act on the basis of the market rate of the adjacent lands similarly situated to the acquired lands prevailing on the date of acquisition or/and prior to acquisition but not subsequent to the date of acquisition. In appropriate cases, addition of 10% per annum escalation in the prices specified in the sale deeds (if filed and relied on) in relation to adjacent similarly situated lands for fixing the market value of the acquired land may be permitted. Such is, however, not the case in hand. Here is the case where firstly, no sale deeds were filed by the appellants to prove the fair market value of the acquired land and secondly, what they now want this Court to do is to take into consideration the rate of those lands which were acquired ten years after the date of acquisition in question and then reduce the value of such land by 10% every year so as to determine the fair market value of the acquired land in question. In our view, such procedure for determination is not provided in the Act."

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(Emphasis supplied by me)

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In the case of Union of India and another Vs. Raghubir Singh (dead) by LRs. Etc. (1989) 2 SCC 754 (para-33), Constitution Bench of Hon'ble Supreme Court considered the provisions of Section 23 and Section 11 of the Act and and held as under:

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"33. We find substance in the contention of the learned Attorney General that if Parliament had intended that the benefit of enhanced solatium should be extended to all pending proceedings it would have said so in clear language. On the contrary, as he says, the terms in which Section 30(2) is couched indicate a limited extension of the benefit. The Amendment Act has not been made generally retrospective with effect from any particular date, and such retrospectivity as appears is restricted to certain areas covered by the parent Act and must be discovered from the specific terms of the provision concerned. Since it is necessary to spell out the degree of retrospectivity from the language of the relevant provision itself, close attention must be paid to the provisions of Section 30(2) for determining the scope of retrospective relief intended by Parliament in the matter of enhanced solatium. The learned Attorney General is also right when he points out that it was never intended to define the scope of the enhanced solatium on the mere accident of the disposal of a case in appeal on a certain date. Delays in the superior Courts extend now to limits which were never anticipated when the right to approach them for relief was granted by statute. If it was intended that Section 30(2) should refer to appeals pending before the High Court or the Supreme Court between April 30, 1982 and September 24, 1984, they could well refer to proceedings in which an award had been made by the Collector from anything between 10 to 20 years

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before. It could never have been intended that rates of compensation and solatium applicable to acquisition proceedings initiated so long ago should now enjoy the benefit of statutory enhancement. It must be remembered that the value of the land is taken under Section 11(1) and Section 23(1) with reference to the date of publication of the notification under Section 4(1), and it is that date which is usually material for the purpose of determining the quantum of compensation and solatium. Both Section 11(1) and Section 23(1) speak of compensation being determined on the basis, inter alia, of the market value of the land on that date, and solatium by Section 23(2), is computed as a percentage on such market value."

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(Emphasis supplied by me)

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In the case of of Ashok Kumar and another Vs. State of Haryana, (2016) 4 SCC 544 (Para-12) , Hon'ble Supreme Court considered situation of two acquired lands and held as under:

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"In the case of the appellants herein, it is an admitted position that the properties do not abut the national highway. Admittedly, it is situated about 375 yards away from the national highway and it appears that there is only the narrow Nahan Kothi Road connecting the properties of the appellants to the national highway. Therefore, it will not be just and proper to award land value of Rs.250/- per square yard, which is granted to the property in adjoining village. Having regard to the factual and legal position obtained above, we are of the considered view that the just and fair compensation in the case of appellants would be Rs.200/- per square yard."

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In view of provision of Section 23 of the Act and the law laid down by Hon'ble Supreme Court in the case of Bhupal Singh (supra) and Raghubir Singh (supra) , the market value of the acquired land in the present set of facts; cannot be determined as per compensation determined in the case of Khajan and others (supra).

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That apart, the entire argument of the claimant-appellant is outside the pleadings and evidences filed by the claimantsappellants in these appeals. As per settled law, a decision cannot be based on grounds outside the pleadings of the parties. In the case of State of Orrisa Vs. Mamta Mohanty, (2011) 3 SCC 436 (para-55), Hon'ble Supreme Court laid down the law that pleadings and particulars are required to enable the court to decide the rights of the parties in the trial. Thus, pleadings are

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more to help the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that "as a rule, relief not founded on the pleadings should not be granted." Therefore, a decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ. While laying down the above noted principles Hon'ble Supreme Court also referred to the judgments in the case of Sri Mahant Govind Rao v. Sita Ram Kesho, (1898) 25 Ind. App. 195 (PC), Trojan and Co. Vs. Nagappa Chettiar, AIR 1953 SC 235, Ishwar Dutt Vs. Collector (LA), 2005 (7) SCC 190 and State of Maharashtra Vs. Hindustan Construction Co. Ltd., 2010 (4) SCC 518 .

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The judgment in the case of Dev Karan (supra) relied by learned counsels for the appellants, relates to village Chhalera Bangar while the acquisition in question is of village Chhalera Khadar which is a different village. Therefore, no benefit of the market value determined by Hon'ble Supreme Court in the case of Dev Karan (supra), can be extended to the claimants-appellants.

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However, I find some substance in the submissions of the learned counsels for the appellants in so far as the determination of market value under the impugned judgment is concerned. Perusal of the impugned judgment of the reference court shows that there was one plot No.177 of village Chhalera Khadar measuring 3 bighas, out of which, the owner Sri Bhule and others sold 2 bighas land for Rs.35,000/- to Defence Officer

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Cooperative Housing Building Society Ltd. while the other owner Sri Teka, Narrottam and others sold remaining 1 bigha land by registered sale deed dated 28.09.1978 for Rs.17,000/- to the same Society. The Special Land Acquisition Officer adopted the market value @ Rs.17,000/- per bigha. Before the Reference Court, these sale deeds were presented but Reference Court also found that sale deed of plot No.177 dated 28.09.1978 for Rs.17,000/- is a good exemplar. However, it added Rs.4000/- for price escalation for about three years inasmuch as the aforesaid sale deed was of the year 1978 while the present acquisition was of the year 1981.

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No reason has been assigned by the Reference Court in the impugned judgment as to why the rate of Rs.17,500/- as reflected from the other sale deed dated 29.09.1978 (part of the same plot), was not considered. The State Respondents have not disputed the escalation in price for about 3 years so as to determine the market value of the acquired land as on the date of acquisition on the basis of sale deed exemplar dated 29.09.1978 or 28.09.1979. Therefore, I find it appropriate and justifiable that a higher rate as reflected from the other sale deed of the same plot which was executed on the next day, should have been adopted to determine the market value after granting escalation. I find that the market value on the basis of sale deed dated 29.09.1978 of plot No.177 after adding escalation for three years @ 15% per annum, would be Rs.25,375/- per bigha.

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In the case of Jage Ram (D) through LRs. vs. Union of India, (2017) 13 SCC 557 (Para-8), Hon'ble Supreme Court has held that compensation can be determined by adding 15%

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escalation in price.

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Therefore, I find that escalation @ 15% per annum for three years should be applied adopting the basic market value of the land @ Rs.17,500/- bigha as per sale deed dated 29.08.1978. The computation comes to Rs.25,375/- per bigha. Therefore, I determine the market value of the acquired land of the claimantsappellants at Rs.25,375/- per bigha.

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In view of the above discussion, all the above noted first appeals are disposed of determining the market value of the acquired land @ Rs.25,375/- per bigha. Impugned judgment and decree of the reference court accordingly stands modified in so far as the appellants are concerned. The other benefits granted by the reference court, shall also be available to the claimantsappellants.

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Order Date :- 06.03.2019 NLY

Swaroopa and Others v. State of U.P.

Case brief

What is this about?

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Swaroopa and Others v. State of U.P.

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