Partly allowed

Smt.Vimla Devi v. State of U.P.

Allahabad HC17 May 2019FAPL/149/1996

Case brief

AI extract

What is this about?

The court appealed a reference court judgment regarding land acquisition compensation. It held that sale-deed exemplars filed by the appellant were credible evidence for calculating market value, despite the reference court relying solely on soil quality rates. After applying a size deduction, the court increased the compensation rate from Rs.11,000 to Rs.16,830 per decimal.

What did the court decide?

Compensation fixed at Rs.16,830 per decimal. Respondents to pay full compensation with benefits and interest within three months.

Smt.Vimla Devi 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. - 149 of 1996

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Appellant :- Smt.Vimla Devi Respondent :- State Of U.P. Counsel for Appellant :- L.K.Dwivedi Counsel for Respondent :- S.C.,S C

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Hon'ble Surya Prakash Kesarwani,J.

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1- Heard Sri L.K. Dwivedi, learned counsel for the appellant and Sri P.P. Chaudhary, learned standing counsel for the Staterespondent.

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2- Briefly stated facts of the present case are that by Notification dated 3.12.1988 under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act'), land measuring 0.799 acres situate in Village Rampur, Pargana Barsathi, district Jaunpur, was acquired for construction of a Store of the Irrigation Department. In the said acquisition Plot No.227 measuring 49 decimal belonging to the claimantappellant, was also acquired. Notification under Section 6(1) of the Act, was issued on 25.1.1980. According to the claimantappellant possession was taken in the year 1978 whereas as per finding in the impugned judgment the possession was taken in the year 1980 i.e. much prior to the acquisition. The Special Land Acquisition Officer made the award offering compensation of about @ Rs.11,000/- per decimal.

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3- Dissatisfied with the award, the claimant-appellant preferred a Land Acquisition Reference being LAR No.65 of 1991( Smt.Vimla Devi v. State of U.P.), which has been decided by the impugned judgment dated 26.10.1991. The reference court affirmed the market value of the acquired land as was determined by the S.L.A.O. However, it granted interest with effect from 1.1.1981 assuming it to be the date of possession by the respondent over the land in question.

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4- Aggrieved with the aforesaid judgment of the reference court, the claimant-appellant has filed the present appeal.

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5- Learned counsel for the appellant submits that the appellant has filed two sale-deed exemplars being paper Nos. 13-Ga and 14-Ga, but these sale-deed exemplars have not been relied by the reference court to determine compensation and instead it arbitrarily and illegally affirmed compensation at the rate determined by the SLAO on the basis of soil quality of the acquired land. He further submits that the respondent could not lead any documentary evidence before the reference court. Under the circumstances, the reference court should have determined the market value on the basis of sale-deed exemplars filed by the claimant-appellant. The genuineness of these sale-deeds were neither questioned nor disputed by the claimants-respondents.

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6- Learned standing counsel supports the impugned judgment.

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7- I have carefully considered the submissions of the learned counsels for the parties and perused the record.

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As per settled principle of law, compensation for the land acquired has to be determined at market value. Market value is the price that a willing purchaser would pay to a willing seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities when led out in most advantageous manner excluding any advantage due to carrying out of the scheme for which the property is compulsorily acquired. The determination of market value is the prediction of an economic event viz. a price outcome of hypothetical sale expressed in terms of probabilities. For ascertaining the market value of the land, the potentiality of the acquired land should also be taken into consideration. Potentiality means capacity or possibility for changing or developing into state of actuality.

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Important principles for determination of market value of acquired land as settled by Hon'ble Supreme Court in various judgments may be summarized as under:-

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(i) While fixing the market value of the acquired land, comparable sales method of valuation is preferred than other methods of valuation of land such as capitalisation of net income method or expert opinion method. Comparable sales method of valuation is preferred because it furnishes the evidence for determination of the market value of the acquired land at which a willing purchaser would pay for the acquired land if it had been sold in the open market at the time of issue of notification under Section 4 of the Act. However, comparable sales method of valuation of land for fixing the market value of the acquired land is not always conclusive but subject to the following factors:-

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(a) Sale must be a genuine transaction,

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(b) the sale deed must have been executed at the time proximate to the date of issue of notification under Section 4 of the Act,

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(d) the land covered by the sales must be similar to the acquired land,

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(e) the size of plot of the land covered by the sales be comparable to the land acquired.

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(f) if there is dissimilarity in regard to locality, shape, site or nature of land between land covered by sales and land acquired, it is open to the Court to proportionately reduce the compensation for acquired land.

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(ii) The amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-a-vis the land under acquisition.

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(iii) For ascertaining the market value of the land, the potentiality of the acquired land should also be taken into consideration. Potentiality means capacity or possibility for changing or developing into state of actuality.

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(iv) Deduction not to be done when land holders have been deprived of their holding 15 to 20 years back and have not been paid any amount.

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(v) When there are several exemplars with reference to similar lands, it is the general rule that the highest of the exemplars, if it is satisfied, that it is a bonafide transaction has to be considered and accepted. When the land is being compulsorily taken away from a person, he is entitled to the highest value which similar land in the locality shown to have fetched in a bona fide transaction entered into between a willing purchaser and a willing seller near about the time of the acquisition. (Ref. (2012) 5 S.C.C 432, Mehrawal Khewaji Trust (Registered ), Faridkot and others Vs. State of Punjab and others).

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(vi) In view of Section 51A of the Act, 1894 certified copy of sale deed is admissible in evidence, even the vendor or vendee thereof is not required to examine themselves for proving the contents thereof. This, however, would not mean that contents of the transaction as evidenced by the registered sale deed would automatically be accepted. The legislature advisedly has used the word 'may'. A discretion, therefore, has been conferred upon a Court to be exercised judicially, i.e., upon taking into consideration the relevant factors. Only because a document is admissible in evidence, the same by itself would not mean that the contents thereof stand proved. Having regard to the other materials brought on record, the Court may not accept the evidence contained in a deed of sale. (Ref. (2004) 8 S.C.C 270 para 28 and 38, Cement Corpn. Of India Ltd. Vs. Purya and others).

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(vii) While fixing the market value of the acquired land, the Land Acquisition Collector is required to keep in mind the following factors:

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(a) Existing geographical situation of the land.

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(b) Existing use of the land.

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(d) Market value of other land situated in the same locality/ village/ area or adjacent or very near the acquired land.

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(viii) Section 23(1) of the Act lays down what the Court has to take into consideration while Section 24 lays down what the Court shall not take into consideration and have to be neglected. The main object of the enquiry before the Court is to determine the market value of the land acquired.

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(ix) The question whether a land has potential value or not, is primarily one of fact depending upon its condition, situation, user to which it is put or is reasonably capable of being put and proximity to residential, commercial or industrial areas or institutions. The existing amenities like water, electricity, possibility of their further extension, whether near about town is developing.

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(x) In fixing market value of the acquired land, which is undeveloped or under-developed, the Courts have generally approved deduction of 1/3rd of the market value towards development cost except when no development is required to be made for implementation of the public purpose for which land is acquired {Reference: (2011) 8 SCC 91, Valliyamal and another vs. Special Tehsildar Land Acquisition and another (Paras 13 to 19).

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(xi) Deduction of "development cost" is the concept used to derive the "wholesale price" of a large undeveloped land with reference to the "retail price" of a small developed plot. The difference between the value of a small developed plot and the value of a large undeveloped land is the "development cost". [Ref. (2012) 7 S.C.C 595 para 21, Sabhia Mohammed Yusuf Abdul Hamid Mulla (dead) and others Vs. Special Land Acquisition Officer and (2010) 1 SCC 444 (Paras- 24 & 25), Subh Ram vs. State of Haryana].

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(xii) The circle rate filed by the Collector or valuation register maintained by the Revenue Authorities under the Stamp Act, 1899 are irrelevant and cannot form a valid criteria to determine market value of land acquired under the Act, 1894, unless such determination is under a statutory obligation and after following a prescribed procedure. {Reference: Jawajee Nagnatham v. Revenue Divisional Officer, Adilabad, A.P. and others, (1994) 4, SCC 595, the Land Acquisition Officer v. Jasti Rohini (1995)1 SCC 717, U.P. Jal Nigam v. M/s Kalra Properties (P) Ltd. (1996) 3 SCC 124, Krishi Utpadan Mandi Samiti v. Bipin Kumar, (2004) 2 SCC 283}.

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10The facts of the case reveals that the acquired land of the claimant-appellant was situate adjoining road and the Rampur Barsathi Market. This fact has been admitted by P.W. 1 in her evidence. She also stated that Inter College, Police Station and the Cinema hall and some other establishments are situate near to the acquired land. Paper No.14Ga is the sale-deed whereby the vendor sold 3.25 decimal land for Rs.95,000/- which indicates selling rate of Rs. 29230/- per decimal. In this saledeed it is mentioned that the land sold is in the market. P.W. 1 herself has admitted in her evidence that her acquired land is situate adjoining the market and it was being used for agriculture. Therefore, admittedly, the acquired land is not situate within the market area. Therefore, the sale-deed exemplar Paper No.14Ga cannot be made basis to determine compensation of the acquired land. Paper No13-Ga is the saledeed dated 25.2.1986, whereby one Mata Pheran had sold 2.5 decimal land to Suresh Kumar and others for a sum of Rs.49,500/-. In her evidence P.W.1 has stated that the land sold under the aforesaid sale-deed is situate near to the acquired land. The acquired land as well as the land sold under the sale deed (Paper No.13Ga) both are situate on road. Therefore, this sale-deed exemplar should have been adopted by the court below to determine the market value of the acquired land.

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11Applying deduction of 15% towards largeness of the acquired area, the market value of the acquired land on the basis of sale-deed exemplar (Paper No.13-Ga) would be Rs.16,830/- per decimal. Thus, the compensation of the acquired land is determined @ Rs.16,830/- per decimal.

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12For all the reasons stated above, the appeal is partly allowed. The compensation of the acquired land is determined @ Rs.16,830/- per decimal. The respondents shall pay compensation accordingly to the claimant- appellant along with other statutory benefits and interest after adjusting the amount already paid, within three months from the date of presentation of a certified copy of this order.

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13The appeal is partly allowed to the extent indicated above. Order Date :- 17.5.2019 Ak/

Smt.Vimla Devi v. State of U.P.

Case brief

What is this about?

What did the court decide?

Smt.Vimla Devi v. State of U.P.

Case brief

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What did the court decide?

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