CFA/26/1999 of COLLECTOR, NORTHERN RAILWAYS AND ANR. Vs SANSAR CHAND AND ORS. on 21 February 2003

1. This is an application seeking restoration of CIA.No. 26/1999, which has been dismissed for non|prosecution vide order dated 21.02.2003. |oDThe parties are ad idem and have stated that.the application be allowed. Accordingly, the appeal is|restored to its original number. Both the learned|counsel agrees that the same be taken up ior|consideration. Accordingly, appeal is taken on board.

CIA No. 26/1999

3The instant appeal by the Officer of theNorthern Railway under Section 52 of the Jammu)and Kashmir Land Acquisition Act, 1934 (for brevity|‘tthe Act?) is directed against judgment and decree dated 24.05.1999 rendered by the learned District|Judge, Udhampur enhancing the compensation of the acquired land belonging to the respondents.

4FactsHOTconstructionotRailwaylinkbetween Jammu and Udhampur, land measuring 11|Kanals 11 Marlas situated in Village Mansu Tehsil|Udhampur was notified for acquisition under Section|4(1) of the Act on the basis of a requisition sent by the Deputy Chief Engineer. The objections undersection 5(A) of the Act were called which was followedby issuance of notifications under Section 6 and 7 of|the Act on 29.11.1983. Eventually, the Collector|announced the award on 07.01.1989. The basis of|the award was report dated 12.12.1985 sent by|Tehsildar Udhampur disclosing the market rate of|the land in Village Sayal Salain to be Rs.20,000/- per|kanal and Village Karlal Kangro at Rs.25,000/- per|kanal. However, the aforesaid rates were notaccepted being irrelevant. In Village Karlal Kangro|through an other award land was acquired at the|rate of 15,Q000/- per kanal for cultivable land,Rs.12,000/- per kanal for uncultivable land and_Rs.10,000/- tor gair mumkin land. The Collector|made the aforesaid award as the basis for assessing|

the market value alongwith some other allied|matters. He then proceeded to determine the market|rate of the land in question. The Collector determined|the market rate as follows:- E1.|Cultivable land |Rs. 15,000 per kanal? «|Uncultivable landRs. 12,000/- per kanal3.]Gair mumkin land Rs. 10,000/- per kanal”|

5The land of the respondents was assessed @Rs. 15,000/- per kanal which was calculated at|Rs.1,73,2590/-, Jabrana @ 19% worked out asRs.25,987.50/- which also stood granted and a total|compensation of Rs.1,99,237.50/- was granted vide|award dated 07.01.1989.

6. The land owner-respondents did not accept therate of interest aS awarded by the Collector and|invoked Section 18 of the Land Acquisition Act. They|approached the Collector with a prayer tor making a|referenceTO|thelearnedDistrict Judgefordetermination of the market value of the acquired|land. The learned District Judge framed the following|

questions for adjudication:-

“1. Whether the valuation award by the Collector|belonging to the petitioners has not been correctly|assessed, if so, what was the market value of the|land and the property acquired on the date of|notification? OPP.2. To what relief the petitioners are entitled to?|OPP”.

[.In order to determine the market value of the|land at the time of issuance of notification under.section 4, the learned District Judge consideredvarious factors which are statutorily recognized bysub section 1 of the Section 23 of the Act and the.irrelevant factors which are not to be taken into.account. Accepting that the market rate is the pricethat a willing purchaser would pay to the seller forthe property with all its advantages and excludinghowever potential possibilities or any advantage dueto carrying out of any scheme for which the propertywas being acquired. According to the learned DistrictJudge the guiding principle which has been approvedby Hon’ble the Supreme Court would be to stand inthe shoes of hypothetical willing vendor who wouldoffer the land and a purchaser willing to buy as aprudent man would behave in normal marketcondition. The learned District Judge also placedreliance on the observations made in the case of Spl.Tehsildar Land Acquisition Vishakapatnam uv. A.Mangala Gowri, AIR (1992) SC 666 and thenproceeded to create basis for assessing the marketvalue on the principle that sale instances akin to thetime of acquisition would be the best proof of assessing the market value. It went further in searchof the principle that if there are no sale instancesakin to the time of the acquisition of the land in thevicinity of the acquired land then the sale instancesof the land in the neighbourhood at the time of thenotification would supply the data to assess themarket value. The learned District Judge also made areference to the observations made in para 4 of thejudgment of Hon’ble the Supreme Court in the caseof Chimanlal Hargovinddas v. Special LandAcquisition Officer AIR (1988) SC 1652 whereinvarious factors have been listed which must be.etched on the mental screen of the reference Court.The aforesaid para reads as under:- “1.A reference u/s 18 is not an appeal|against the award and the court cannot takeinto account the material relied upon by theland acquisition officer in his award unlessthe same material is produced and provedbefore the Court.2.So.also.theaward OT|thelandacquisition officer is not to be treated as ajudgment of the trial court open or exposedto challenge before the court hearing thereference. It is merely an offer made by theland acquisition officer and the materialutilized by him or making his valuationcannot be utilized by the court unlessproduced and proved before it. It is not thefunction of the court to sit in appeal againsttheaward,APPIOVe,OT|disapprove1ts|reasoning or correct its error or affirm,modify or reverse the conclusion reached bythe land acquisition officer as it if were anappellate court.3.The court has to treat the reference as.alloriginalproceedingsbefore1tand determine the market value afresh on thebasis of the material produced before it.4.The claimant is in the position of a|plaintiff who has to show that the priceotfered for his land in the award isinadequate on the basis of the materialsproduced in the court. Of course thematerials placed and proved by the otherside can also be taken into account for thispurpose.”

8. The learned District Judge then proceeded to.consider the sale instances produced by both theparties and then concluded that the relevant date fordetermining the market value of the acquired land is95.11.1983 when notification under Section 6 was!issued (under J&K Act). It has been concluded thatin the vicinity of the Village where the land inquestion has been acquired, no evidence of saletransaction has been brought on record. The learnedDistrict Judge then made aé reference to theObservations made by Hon'ble the Supreme Court inthe case of Gulzara Singh v. State of Punjab(1993) 4 SCC 245 to carve out a principle that if thesale transaction of the land in the vicinity of theacquired land are not available then the saleinstances of the land in the neighbourhood that ispossessed of the same or similar potentials or fertilityor other advantageous features could furnish thebasis to determine just and fair market value on the premises of a hypothetical willing vendee who wouldagree to purchase the land as a prudent man innormal market conditions and proceeded to hold asunder:- “Though the sale deeds relied upon by thepetitioners as example of market value havenot been executed in the relevant year, yetthere being no other sale deed available, canbe taken into consideration. Regarding theconditions ot the land sold and the landacquired, it has come in the evidence of thewitnesses of the petitioners that the landacquired is irrigated land being irrigated froma water spring where as the lands sold aredry lands. Regarding the land sold vide saledeeds KBXPWBL and EXPWIM it has beencontended by PWs Todar Mal and Bansi Lalthat these lands have been sold for thepurpose of constructing a house and theland sold vide sale deed KBXPWBL is at adistance otf S8OQO fteet from the roadsurrounded by many houses but there isnothing in their evidence to indicate thelocation of the land acquired and for thatmatter at what distance the land acquired issituated from the village habitat. The landtransaction EXPWTITM and BXPWBL seems tbe located within village habitation. The thirdsale about which PW Mani Ram has testified,pertains to the land sold on 12-8-87 at therate of Rs. 90,000/- per kanal. PW Mani Ramin cross examination has admitted that theland sold by him is at a distance of 2/3jareebs from village habitat whereas thelands acquired is at a distance of 10/195jareebs there from. So taking the cue fromthe petitioner’s witness PW Mani Ram, in myview the market rate of the land acquired canbe assessed and while doing so it must bekept in mind that the sale transaction tookplace about 2’ayears aiter the relevant date.According to this sale deed the rate of landwas Rs. 90000 per kanal and only 5’2 marlasof the land was purchased for Rs. 23750/-through this sale deed. Keeping in view thedistance from the village habitat of the landsold through this sale deed and the distanceof the acquired land there from, the marketrate can be worded out by proportionatelyreducing the rate at which the land stood

sold through the said sale deed. It it was Rs.90,000/- per kanal at a distance of 2/3jareebs from village habitat, it could not bemore than its % that a distance of 10/195jareebs from village habitat. Therefore at thatdistance the market rate oft the land soldcould be Rs. 2290/- per kanal. Some marginhas also to be given to the quantity of theland sold and quantity of the land acquired.The land sold through said sale deed was 5’/marlas, a small piece of land where as landacquired consists of 11 Kanals 11 marlas. Soleaving a margin of Rs. 2900/- per Kanal forthe development of the land, if the same wasto be sold in such small portions, the marketrate will work out to be Rs. 20,000/- perkanal and this rate ot land seems to be fairand just at the time of acquisition to theland, which took place about 2’ years betorethe said sale transaction.”

OQOn the basis of the aforesaid findings, the land|owner-respondents were held entitled to receivecompensation at the rate of Rs.20,000/- per kanal inaccordance with their respective shares and interestin the land acquired. They were also held entitled tointerest @ 6% per annum from the date of theirdeportation and solatium at the rate of 15% thereon.The learned District Judge further directed that theamount, if any, already received by them was to betaken into account for working out the balancecompensation. —

10. Mr.siddiqul,learnedAdditionalAdvocateGeneral has argued that the basis of assessingcompensation adopted by the reference Court is notcorrect because the sale instance belong to entirely a different area. According to the learned counsel thesale deeds EXPWBL and EXPWIM would not providea sate basis. He has maintained that the sale deed.KBXPWBL would show that one Parmanand sold 7marls of land situated in village Karlal Kangro to PWBansi Lal for a sum of Rs.35,000/- and the rate ofthe land projected by the sale deed is Rs.5,O00/- permarla which comes to Rs.1,00,000/- per kanal. Thesale deed was executed on 29.12.1986 whereas the§relevant date admittedly is 25.11.1983. The othersale deed EXPWTM of the same village by showingthe land sold by Permanand was executed on23.02.1997 which shows the similar rates. Likewise,the sale deed dated 12.08.1987 would show lesser|rate and the land measuring 5 ’2 marlas was sold forRs. 24,750/- and the compensation was worked outat the rate of Rs.4,500/- per marla i.e. 90,000/- perKanal. The land sold later in the year 1987 was atalow rate then the land sold in the year 1986 whichaccordingTO the.learnedStatecounsel1S unbelievable situation.

11. Ms. Sindhu Sharma, learned counsel for theland owner-respondents has supported the order ofthe learned District Judge by submitting that the best legal course available on the basis of evidenceon record has been preferred by the learned DistrictJudge. According to the learned counsel a wellreasoned order has been questioned by the appellanton totally untenable and unwarranted grounds.12. Having heard the learned counsel for the partiesand perusing the paper book with their ableassistance, I am of the considered view that the.learned District Judge has rightly taken into accountthree sale instances which are in respect of landsituated to the nearest possible distance. The learnedDistrict Judge compared the quality and nature ofthe land involved in the sale instances on the one.hand and that of the land acquired. The learnedDistrict Judge has rightly taken into considerationvarious components like location of the land involvedin sale instances; their smaller area of the sale andits quality. These factors are relevant considerationas has been pointed out by Hon'ble the SupremeCourt in Gulzara Singh’s case (Supra) and the samehas been rightly applied by the learned DistrictJudge. The view taken in Gulzara Singh’s case hasbeen repeatedly followed and applied even in laterjudgments of Hon’ble the Supreme Court like

Jawajee Nagnathan v. Revenue Divisional Officer(1994) 4 SCC 595 and Kasturi and ors. v. State ofHaryana (2003) 1 SCC 354. It is appropriate tomention that in Gulzara Singh’s case Hon’ble theSupreme Court upheld the deduction of 1/3[ra]ot the.undeveloped land towards developmental charges. Inthat case 90 acres of undeveloped land was acquiredwhich needed to be developed by laying roads, parks,drainage, lighting and other civic amenities. Thefollowing principles have been carved out which arediscernible from the reading of para 3 of thejudgment. The relevant part of para 3 incorporatingthe aforesaid principle is set out below:-|

“It is settled law that to determine the marketvalue of the land under Section 23(1) of theAct the sales of the land under requisition, ifany, or the sales in the neighbourhood landsthatpossessedoT SameOT|similarpotentialitiesOT|fertilityOT|otheradvantageous features would furnish basis todetermine just and fair market value on thepremise of a hypothetical willing vendor andwilling vendee. The willing vendor who wouldoffer the land and willing vendee who wouldagree to purchase the land as a prudent manin normal market conditions as on the dateot the notification or near about the date ofthe notification is the acid test” (Emphasisadded)

13. In the present case, the total area of the land.

acquired is 11 marlas and three sale deeds whichhave been made the basis for assessing the marketvalue involved in the sale of land measuring 7

marlas, 59 marls and So ’ marlas respectively. It itrue that when a large tracts of land is acquired thesale deed in respect of smaller pieces of land mayconstitute the sole basis for determining the just andfair market value. There is, however, no bar to relyon such sale deeds provide the Court applies asuitable cut because the principle of necessity wouldbe attracted. Reliance in this behalf may be placedon the judgment of Hon'ble the Supreme Court in K.Vasundara Devi v. Revenue Divisional Officer(LAO) 1995 (S) SCC 426. |

14. In the present case, reduction in the priceshown in the sale deed has been made on the basis.that it pertains to sale of smaller areas, location anddistance. It is on the basis of the aforesaid factors,coupled with the statement made by the witnessesproduced by the land owners, that the price has beenfixed. Therefore, the price given in the sale deedpertaining to smaller area is not the sole basis onwhich the learned District Judge has proceeded. Hehas adopted a fair method for imposing suitable cuts.It was in the aforesaid facts and circumstances that|in Kasturi’s case (Supra) Hon’ble the Supreme Courthas approved similar reduction imposed by the High Court. Therefore, I am of the considered view thatthere iS no ground to interfere in the findingsrecorded by the learned District Judge. Accordingly,the view taken by the learned District Judge isapproved. —

15. As a sequel to the above discussion, this appealfails and the same is' dismissed. The balanceamount, if any, payable to the land owner-respondents shall be paid expeditiously preferablywithin a period of two months from today, failingwhich the land owner-respondents would be entitledto additional interest @ 9% per annum from the datethe amount was due till the date the payment ismade. This interest would be in addition to the.interest already awarded by the learned DistrictJudge.

16. No costs.

Jammu,07.12.2012Parshant§

(M. M. Kumar).

Chief Justice