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SRI ASHOK KUMAR NARANG versus STATE OF U.P. & ANOTHER

High Court of Judicature at Allahabad

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Sri Ashok Kumar Narang v. State Of U.P. & Another - FIRST APPEAL No. 269 of 1998 [2004] RD-AH 1413 (16 November 2004)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

First Appeal No. 269  of 1998

Ashok Kumar Narang

Versus

State of U.P.and another

Hon.Sanjay Misra.J.

This first appeal has been filed against the judgment and order dated 3.2.1998 passed by the IInd Additional District Judge Allahabad in Reference No. 41/90 under  section 18 of the Land Acquisition Act . The notification under section 4 of the Act was issued on 6.3.1987. The notification under section 6 of the said Act was issued on 4.4.1987. Possession of the land under notification was taken on 25.11.1987  and the award was  made on 31.3.1989. The land of the appellant being plot no. 9 having an area of 2 Biswas , 19 Biwansi was also acquired.  The total land sought to be acquired was  87-9-14 Bigha for the purpose of a residential colony to be built by the respondent no. 2.Allahabad Vikas Pradhikaran.

It i the case of the appellant that he had purchased the land in village Kasari  Masari Tehsil Chail District Allahabad for making his residential house . The said plot no.9 area 400 Sq.  Yard was purchased by him from Sri Jahoor Hasan and others @ Rs. 12  per square yard in the year 1975 .  However, the appellant could not build  his residential house and  in the year 1987 the land was acquired by the State Government. The appellant has stated that he had no notice or knowledge  about the acquisition proceedings and for the first time    he came to know in December 1989 that his valuable land has been acquired and the compensation fixed by the Special Land Acquisition Officer is inadequate  . He has stated that his land is situated just adjacent to G.T.Road and now Railway station , post office ,commercial area  ,School etc. are to be made here. He has stated that the land is not agricultural land  but the compensation determined  is on the basis that it is agricultural  land . The compensation of Rs. 2288-87  for his  land is very little whereas the value of the land ought to have been at the rate of Rs. 250 to 300 per Sq. Yard.

The Collector  also filed objection before the reference court stating therein that the land is Banjer , uneven and there is no facility of irrigation. He has stated that the land has been acquired for development of residential colony. There is no facility of Transport, Bus Station, Police Station, School ,Market etc. near the land and that it is far away from any other residential area. The authority has to invest  huge amount of money for development of the land before it can be made ready for building residential houses hence a sum equal to 40% is liable to be deducted for development on the market value of the land.  He has justified compensation determined by the Land Acquisition Officer.  The Allahabad Development Authority also filed their objections and supported the case set up by the Collector.

The reference court framed four issues and decided the  issue nos. 1,2, and 3 together which were  pertaining to  whether compensation determined by the Land Acquisition Officer is inadequate ,  whether acquired land has the potential to  be developed into a residential colony and as to what was the market value of the land on the date it was acquired.  While considering the aforesaid issues , reference court took into consideration the pleadings of the parties. The appellant Ashok Kumar Narang had given his statement and proved the sale deed dated 16/7/1975 by which  he had purchased 400 Sq. yard land for  a sum of   Rs. 5000/-. The appellant had filed questionnaire being paper No. 11-C to show that the land at Kasari Masari was valuable land in as much as the circle rate for the purpose of stamp duty on registration of sale deeds  had been fixed @  Rs. 150 to Rs. 250 per sq. metre by the Collector.  The appellant had relied on  the sale deed dated 8.5.1987 relating to plot no. 1408 whereby an area of 225 Sq. yards on  189 sq. metre   was sold or  a sum of Rs. 28,500 which comes  to approximately    Rs. 150 per  Sq. yard . The appellant  relied upon a reference Case No. 39 of 1993 (Mohi Uddin Versus State) wherein notification U/s 4(1) was issued on  21.7.1990   and final publication was made on 12.10.1990 , possession was taken on 12.11.1990 U/s 17 (1) of the Act. The  reference court had awarded compensation @ Rs. 200 per sq. metre in the same area. The appellant also relied on the award of Reference Case No. 42 wherein compensation of different categories of land was fixed between Rs.  11.144-00 P to Rs. 27,813-44 P per bigha.

The Revenue Inspector Madan Lal Srivastava has deposed on behalf of the State and stated that the land in question is agricultural  and the compensation determined is in accordance thereof. The State has relied upon a sale deed dated 17.2.1986 wherein  the land has been sold @ Rs. 20,000 per bigha and therefore, the compensation determined by the Special Land Acquisition Officer @ Rs. 19000 per bigha to Rs. 27000 per bigha is correct.

Sri Haider Abbas Senior Engineer of Allahabad Development Authority has filed his affidavit and relied upon the sale deed dated 28.8.1985 wherein one bigha of land was sold  Rs.20,000 and has stated that the compensation determined by the Special Land Acquisition Officer is correct.

The  court below  while considering the evidence of the parties has held that  agricultural land has been acquired for the purpose of residential colony and the area of Kasari Masari is  situate in the Municipality.  He has recorded that the area acquired is adjacent to  the G.T.Road and the Kausambi Road is also nearby . He has held that the land in question is fit for development of a residential colony . On the aforesaid reasoning the   court has held that the compensation determined by the Special Land Acquisition Officer  is inadequate. The  court has held that while determining the compensation, the Special Land Acquisition Officer has ignored the circle rate fixed by the Collector. Court has observed  that in 1975 the appellant had purchased  400 Sq. yards of land for a sum of Rs.5000/-  and the Special Land Acquisition Officer has committed grave illegality in determining the compensation for the same  land   @ Rs. 1600 to  Rs. 2200 in 1989 i.e. after 14 years . He has observed that the price of the land increases every year  and was of the opinion that the sale deed dated 8.5.1987 was believable and therefore, the compensation for  400 sq. yard of land cannot be less than   Rs. 15000 under any circumstances.

While considering the judgment in reference No. 39 of 1993, the  court has held that the circumstances of that case are not applicable to the present reference in as much as that  reference relates to the second stage of acquisition of land at Kasari Masari whereas in the present case the acquisition is of phase -I and the award of the Special Land Acquisition Officer is of the year 1989  . After considering the evidence led by the parties, the  court below  has recorded  finding that the land in question was within the limits of the Nagar Mahapalika  and according to the map, it is situated near main road and at the time of its acquisition in 1987  compensation for 400 Sq. yard would be Rs. 15000 and the appellant would be entitled to the same and that   the compensation determined by the  Special Land Acquisition Officer was wholly inadequate.

Heard Sri B.Malick ,learned counsel  for the appellant and Sri B.B.Paul, learned counsel appearing on behalf of the Allahabad Development Authority as well as learned standing counsel.

Learned counsel for the appellant has submitted that although  the circle rate fixed by the Collector for the purpose of stamp duty on registered sale deeds  is not sole basis for determining the compensation of acquired land,  however, he has  stated that the value of the land should not be in any event less than circle rate . He has relied upon a government order  Paper No. 12A/9  where in clause 6  it has been laid down that while deciding  compensation  the market value should not be less than circle rate fixed by the Collector for the purpose of stamp duty on registered sale deed. Learned counsel for the appellant has also relied upon a valuation report being  Paper No. 30C. He  has also placed reliance on the statement of Land Acquisition Amin wherein it  has been stated that the valuation report  was prepared by him and the same was prepared for the purpose of fixing the rate of land for the Allahabad Development Authority.  Learned counsel for the appellant has relied upon the statement of the appellant who has stated that the value of the land in 1987 ought to have been Rs. 300 to 400 per Sq. yard. The appellant has proved his sale deed of 1975.

Learned counsel for the Allahabad Development Authority has submitted that the valuation report which is sought to be relied upon by the appellant does not relate to the value  of the land for the purpose of determining its compensation.  He submits that the aforesaid valuation report is for the purpose of estimating the cost of development  of the land for  residential colony which has to be developed by the Allahabad Development Authority  by providing all the basic amenities like Road, Drainage, Sewer, Water ,Electricity etc. Consequently the valuation report is only the estimate of development  cost.

 Learned counsel for the Allahabad Development Authority has stated that the compensation in Land Acquisition Reference No. 39 of 1993 (Muhi Uddin Versus State of U.P. and others) relates to the acquisition of the year  1990 whereas in the present case, the acquisition is of the year 1987.  He submits that in the first phase of acquisition for development of residential colony at  Kasari Masari land of the appellant had been acquired.  After the first phase of acquisition in 1987 ,second phase of acquisition for establishment of the residential colony was made in 1990 ,consequently the award in reference No. 39 of 1993 would not have any relevance for determining the compensation of the acquired land in 1987 during the first phase.  He has also stated that the sale deed dated  8.5.1987  which has been relied upon by the appellant is after the notification under section 4(1) and 6 of the Act  and therefore, it could not be relied upon . Learned counsel for the Allahabad Development Authority  has referred to the statement of the appellant  in which appellant himself has stated that  he has preferred  the present reference because other land holders have filed reference  and as such it cannot be said that the appellant was in any manner aggrieved by the compensation determined by the Special Land Acquisitions Officer.

It is admitted between  the parties that the notification under section 4 (1) of the Act was issued on 6.3.1987 . Consequently the reference court was required to determine the amount of compensation on the basis of market value of the land on the date of publication under section 4(1) of the said  Act.

The learned counsel for the appellant had firstly relied upon the circle  rate fixed by the Collector for the purpose of stamp duty on registgration of sale deeds. The appellant has filed  paper No. 11-C. which is in the form of questionnaire obtained from the office of  the Collector wherein circle rate for the year 1987-88 with regard to the land in the area of Kasari Masari has been fixed at Rs. 150 to 250 per sq. metre. The notification  of the Collector under rule 340 has been filed  as paper no. 12-A. A perusal  thereof reveals that the rate of stamp duty fixed by the Collector regarding town area Chail Khas is firstly, if the land is on the main road Rs. 60 to 90   per sq. metre . Secondly if the land is at the distance from the main road Rs. 30 to  Rs. 50 per sq. metre and thirdly any land   within 200 metres from the town area would  be Rs. 30 to Rs.50 per sq. metre. The area under acquisition namely Kasari Masari falls within the Pargana and Tehsil Chail. The reference court while considering this objection of the parties recorded a finding that the area in question is adjacent to the GT road and is at a  distance from the Kaushambi Road. Consequently he arrived at the conclusion that the Special  land acquisition officer has awarded inadequate compensation therefore, he held that a  perusal of the  sale deed dated 8.5.1987 goes to show that in the same area, the value of 400 Sq. yards of land would not in any circumstances be less than  Rs. 15000/- . The sale deed  of  1975 reveals that the said land was purchased by the appellant  at the rate of Rs. 12.50  per sq. yard . The sale deed dated 8-5-1987 with respect to the land in the same area reveals that an  area of 225 Sq. yards (189 Sq. metre) was sold for a sum of Rs. 28500/-. Similarly the sale deed  reveals that the area of 150 Sq. yard (126 Sq. metre) was sold for Rs. 22500.  In the present case, it is the case of the appellant himself that he had purchased the land in the year 1975 for building his residential house. However, after 12 years  i.e.  in 1987 , the appellant has stated that he could not make any construction over the land in question, as such it is admitted that the appellant was not compelled, due to the acquisition, to change residence or that he was displaced  due to the aforesaid acquisition . In view of the aforesaid evidence the finding of the court below  to the effect that the compensation  for  400 Sq. yard of the land of appellant could not be less than Rs. 15000 rupees  does not suffer from any error.

Reliance placed  by the appellant on the valuation report  paper No. 30-C made by the Land  Acquisition Amin of the acquiring body cannot come to the aid  of the appellant to be a ground for determining  compensation of the land on the date of its acquisition . Learned counsel for the acquiring authority has  contended that the said report relates to the investment which the acquiring body would make for development of the land.   Consequently  the  said  valuation report could not be considered for determining market value of the land as on the date of acquisition for the purpose of determination of compensation to be paid to the appellant.

The contention  of the appellant  is that the land reference No. 39 of 1993 decided on 20.1.1995  has been ignored by the reference court  and therefore, the appellant is entitled to compensation in accordance with compensation awarded by the reference court in the aforesaid reference.  A perusal of the aforesaid reference indicates that the said reference relates to a  subsequent notification  for acquisition of land.  It is the contention of the respondents that earlier notification of 1987 related to first Phase of the acquisition for development of residential colony in Kasari Masari . The notification which has given rise to the Reference No. 39 of 1993  is for the IInd phase of the proposed residential colony at Kasari Masari. The submission of the learned counsel for the appellant that he would be entitled to the  same amount  of  compensation as awarded in reference No. 39 of 93 cannot be accepted since after the first acquisition of 1987, the nature of the land at Kasari Masari was definitely  changed from agricultural /semi agricultural to full-fledged residential  colony, therefore, the  subsequent  notification for acquisition for the IInd phase for residential colony  in the year 1990 cannot be made a ground for determination of compensation of the land in question which was acquired three years earlier i.e. in the year 1987. Learned counsel for the appellant also referred to Reference Case No. 42 and claimed parity for award of compensation.

The Reference Case No. 42 relates to the same notification which has given rise to Reference No. 41 . A perusal of the judgment and order dated 31.3.1989 made in Reference No. 42 shows that the compensation awarded  for different categories of land was between Rs. 11,144/- to Rs. 27813-44 P per bigha. The cases of as many as 104 claimants was decided in that Reference. In the instant case the compensation determined  for different categories of land is between Rs. 19,000/- to 27000/- per bigha. Therefore, no advantage can be derived by the appellant from the decision of Reference No.42.

Normally the value of the land is to be determined according to the prevailing price of the adjoining land. The value of the land is to be determined as on the date of notification for acquisition . When large area  of land is  acquired, it cannot be compared to sale transaction in respect of small pieces of land in such area . The exemplar  sale  deeds of small pieces  of land  can be relied upon  and appropriate deduction would be made if  the total  area of acquired land  is huge . Reduction in percentage is to  be considered while awarding compensation for a smaller area of land which forms part of larger area acquired, therefore, after ascertaining  the value of  land with respect to individual interest of small pieces the total  extent of land acquired  has to be taken into consideration and then  reduce the same reasonably . It is also necessary  to take into consideration that the  comparable sales were within  reasonable time of the date of notification for acquisition and  the sales were bonafide transactions related  either to the land acquired or the land adjacent thereof and also that the  comparable sale possessed  similar advantages. It is the case of the respondents that the land in question was acquired for development  of a residential colony , While determining the market value of the land ,it is also to be taken into consideration  that certain deductions would be permissible towards development charges . The compensation  of the land in question as determined by the reference court therefore, does not suffer from any illegality.

In view of above discussions, this appeal has no force and is accordingly dismissed.

There will be no order as to costs.

Dt...../11/2004


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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