Smt. Savitri Devi v. The Land Acquisition Collector, Gurgaon And Others S

Rajesh Bindal J.

This order will dispose of a bunch of appeals bearing RFA Nos. 2174, 2175, 2699 to 2704, 2920 to 2930, 3308, 3309, 3320 to 3333, 4031 to 4034, 4053, 4054, 4065, 4067, 4345, 4346, 4377, 4380, 4389 to 4420, 4467 to 4474, 4480 to 4485, 4495, 4496, 4503 to 4505, 4653 to 4657, 4703, 4707, 4712, 4713, 4818, 4819, 4825, 4827, 4829, 4877, 4880, 4883 to 4890, 4901 to 4918, 5098 to 5100, 5297, 5298, 5306 to 5308, 5354 to 5361, 5383, 5384, 5388 to 5391, 5405, 5586, 5588, 5635 to 5649, 5671 to 5680, 5695 to 5697, 5706 to 5708, 5713, 5714, 5763, 5774, 5780, 5782 to 5784, 5792, 5804, 5809, 6214, 6228 to 6286, 6291, 6298, 6346 to 6352, 6361 to 6370, 6380, 6382 to 6384, 6461 to 6484, 6591 to 6599, 6631 to 6633, 6638, 6639, 6670, 6671, 6674, 6770 to 6871, 6916 to 6921, 7122 to 7134, 7207, 7253 to 7255, 7270, 7271, 7389, 7467, 7494, 7504, 7505 of 2012;

RFA Nos. 386 to 388, 445, 447, 450, 470, 629 to 832, 843 to 853, 1054, 1055, 1079, 1087, 1103, 1105, 1107, 1122, 1212, 2140, 2305, 2315, 2636, 2807, 2820, 2870, 3324, 3325, 3496, 4325, 4345, 7180 to 7184, 7268 of 2013;

RFA Nos. 250, 386, 391, 505 to 511, 802 to 805, 820, 836, 837, 947, 1512, 1579, 1607, 1839 to 1909, 2118, 2137, 2151, 2152, 2176, 2282, 2292, 2544, 3822, 4257, 4556, 4557, 4686 to 4693, 4981, 5273, 5464, 6353, 7672 and 7673 of 2014;

Cross Objections No. 33-CI, 43-CI and 88-CI of 2013; and Cross Objections No. 2-CI, 45-CI to 48-CI of 2014.

In the appeals and cross objections filed by the landowners, they are seeking further enhancement of compensation for the acquired land, whereas in the appeals filed by Haryana State Industrial and Infrastructure Development Corporation Ltd. (for short, ‘the Corporation’), the prayer is for reduction thereof.

Briefly, the facts of the case are that State of Haryana vide notification dated 29.1.2003, issued under Section 4 of the Land Acquisition Act, 1894 (for short, ‘the Act’) sought to acquire land measuring 1779.40 acres, situated in villages Khandsa, Narsingpur, Mohammadpur Jharsa, Harsaru and Garauli Khurd, Tehsil and District Gurgaon for setting up of Industrial Complex to be planned and developed as Special Economic Zone (‘SEZ’) Phase-I. The same was followed by notification dated 28.1.2004, issued under Section 6 of the Act. The Land Acquisition Collector (for short, ‘the Collector’), vide award dated 27.1.2006, assessed the market value of the acquired land @ Rs. 15,00,000/- per acre for the land pertaining to revenue estates of villages Khandsa and Narsingpur and @ Rs. 12,50,000/- per acre for the land pertaining to revenue estates of villages Harsaru, Mohammadpur Jharsa and Garauli Khurd. Aggrieved against the awards of the Collector, the land owners filed objections which were referred to the learned court below, who keeping in view the material placed on record by the parties, assessed the market value of the acquired land @ Rs. 40,95,000/- per acre for the land pertaining to revenue estates of villages Khandsa and Narsingpur. Vide another award, the learned Reference Court assessed the market value of the acquired land @ Rs. 31,50,000/- per acre for the land pertaining to revenue estates of villages Garauli Khurd, Harsaru and Mohammadpur Jharsa. The aforesaid awards have been impugned by the landowners as well as the Corporation in the present bunch of appeals.

Arguments

Learned counsel for the landowners submitted that the acquired land in the present case was strategically located. Industrial Model Township (‘IMT’), Manesar, which had been developed by the Corporation is not far away from village Harsaru. Part of the acquired land is situated near Gurgaon-Pataudi road. It is a compact block and the boundaries of all the villages, whose land had been acquired, touch each other. Railway Station is situated in village Harsaru at a distance of three kilometers.

It was further submitted that the land was located quite close to the already developed city of Gurgaon. Adjoining to the acquired land, in 1988 the land was acquired by the State for development by HUDA as residential and commercial Sector-37, known as ‘Pace City’. In that case, notifications under Section 4 of the Act were issued on 16.12.1988 and 30.1.1989 In Attar Singh v. State of Haryana, 1999 (3) PLR 221, this court upheld the award of the learned Reference Court assessing the compensation therefor @ Rs. 7,22,500/- per acre. He further submitted that at Manesar, a place which is located about 20 kilometers away from the acquired land towards Jaipur, IMT was developed by the Corporation, for which first phase of acquisition was carried out vide notification dated 15.11.1994, where compensation of Rs. 20,00,000/- per acre was assessed by Hon'ble the Supreme Court in Haryana State Industrial Development Corp. v. Pran Sukh, (2010) 11 SCC 175. In the aforesaid case, sale transaction pertaining to 12 acres of land was relied upon as such without application of cut for valuation of land measuring 1,490 acres, 3 kanals and 17 marlas of land. The allotment of plots in IMT, Manesar was made at exorbitant rates. A plot for construction of tower was sold for about Rs. 100 crores. It was further submitted that even opposite to the acquired land, i.e, on the other side of Delhi-Jaipur National Highway (‘NH-8’), lot of development activities were already there as the land was being developed by the builders as well as by State agencies. All infrastructural facilities were already available close to the acquired land. Number of industrial units were already established. In fact, substantial portion of land, which was acquired vide same notification was released. This itself proves this fact.

Learned counsel further referred to four sale deeds produced by the landowners on record. He submitted that genuineness thereof is not in dispute. Three of them were registered within one year prior to the date of issuance of notification under Section 4 of the Act. The land dealt with therein was big chunk, whereas one was registered six years prior thereto. The court below has wrongly ignored the sale deed (Ex. P4 in LAC No. 139 of 2008) from consideration for the reason that vendee therein was already having land on two sides of the land sought to be purchased, hence, may have paid more value. The submission is that even another sale deed (Ex. P3 in LAC No. 139 of 2008), which was registered close in time, the consideration paid was in the same range, hence, it was not appropriate for the court to have rejected the same from consideration. The land pertaining to two sale deeds (Ex. P3 and Ex. P4 in LAC No. 139 of 2008) was not located on the Highway. Statement of RW1-Ram Pal Singh, Manager (IA) of the Corporation (in LAC No. 139 of 2008) was referred to, where in his cross-examination he admitted this fact. Reference was also made to the statement of PW8-Kuldeep, Patwari from the office of the Corporation (in LAC No. 139 of 2008). He further submitted that from the site plan, which has been produced in court and marked ‘X’, it is evident that major chunk of land was released where industries and commercial establishments had already been set up.

It was further submitted that the entire acquired land was a compact piece located close to the city, hence, the compensation payable therefor should be assessed at the same rate without applying any cut and carving out any belting system. The sale transactions (Ex. P3 and Ex. P4 in LAC No. 139 of 2008) should be relied upon, which show the maximum value, in conformity with the judgment of Hon'ble the Supreme Court in Mehrawal Khewaji Trust (Registered), Faridkot v. State of Punjab, (2012) 5 SCC 432. He further submitted that sale transactions produced by the landowners are for quite big chunks of land. The same cannot be ignored as even the land owned by different landowners was also not very big chunks. There are hundreds of landowners if acquired land in totality is a big chunk. It was further submitted that for assessment of compensation for the acquired land, some guess work has always to be applied as the same cannot be by mathematical exactitude. In support of his arguments, reliance was placed upon Union of India v. Harinder Pal Singh, (2005) 12 SCC 564; General Manager, Oil and Natural Gas Corporation Limited v. Rameshbhai Jivanbhai Patel, (2008) 14 SCC 745 and Trishala Jain v. State of Uttaranchal, (2011) 6 SCC 47.

The mere fact that the Collector had awarded compensation for structures existing on the acquired land (supplementary award dated 27.2.2007 Ex. R16 in LAC No. 139 of 2008 passed by the Collector) shows that there was lot of development activity in the area. The principle of cut for development or infrastructural facilities apply only where the sale transactions pertain to a developed plot, where plotable area is less. It was further submitted that even the areas, which were left out from acquisition, where industries had been set up, the State is charging external development charges and also fee for change of land use.

Learned counsel for the landowners further referred to

(i) Award dated 15.2.2011 (Ex. P21 in LAC No. 139 of 2008) passed by the Reference Court pertaining to acquisition of land in village Chakarpur, Tehsil and District Gurgaon for development as residential, commercial and institutional and open spaces area for Sectors 26-A, 27, 28, 42 and 43 by Haryana Urban Development Authority (HUDA), where notification under Section 4 of the Act was issued on 21.5.2002 and compensation was assessed @ Rs. 2,408/- per square yard;

(ii) Award dated 8.2.2011 (Ex. P22 in LAC No. 139 of 2008) passed by the Reference Court pertaining to acquisition of land in village Wazirabad, Tehsil and District Gurgaon for residential, commercial and institutional area in Sector 57-Part at Gurgaon vide notification dated 9.6.2003, issued under Section 4 of the Act assessing the market value of the acquired land @ Rs. 2,106/- per square yard;

(iii) Judgment dated 1.10.2010 (Ex. P23 in LAC No. 139 of 2008) passed by this court in RFA No. 1824 of 2006-Sudama v. The State of Haryana appeals pertaining to acquisition of land in villages Kanhai, Samaspur, Wazirabad and Bindapur, Tehsil and District Gurgaon for development of Sectors 51 and 52 at Gurgaon vide notifications dated 5.5.1997 and 15.5.1997 and in villages Chakarpur and Wazirabad for development of Sectors 26-A, 27, 28, 42 and 43 vide notification dated 8.9.1997 issued under Section 4 of the Act assessing the market value of the acquired land @ Rs. 1,216/- and Rs. 1,520/- per square yard, respectively.

(iv) Award dated 28.1.2011 (Ex. P24 in LAC No. 139 of 2008) passed by the Reference Court pertaining to acquisition of land in villages Kasan, Bas Kusla, Bas Haria and Dhana, Tehsil and District Gurgaon for setting up IMT, Manesar, Phase-III vide notification dated 7.3.2002, issued under Section 4 of the Act assessing the market value of the acquired land @ Rs. 37,54,465/- per acre.

(v) Copies of allotment letters (Ex. PW8.A and Ex. PW8.B in LAC No. 139 of 2008) issued by the Corporation for allotment of commercial sites at IMT, Manesar.

(vi) Copies of revised fare table (Ex. PW9.A, Ex. PW9.B and mark ‘B’ in LAC No. 139 of 2008) of Haryana Roadways, Gurgaon showing distance of different places from the city.

With reference to valuation of land of village Harsaru, learned counsel for the landowners submitted that the aforesaid portion of land is contiguous with the land of village Khandsa, as the entire land is a compact block. As per the development plan notified by the State, the same is located within urbanisable limits. The same is located close to city of Gurgaon. Even the area, which is located at a distance of about 20 kilometers away from the acquired land had already been developed as IMT, Manesar. All the sale deeds produced by the State were rightly rejected considering the fact that average sale consideration paid therein was below the value assessed by the Collector. The sale deeds produced on record by the landowners had not been properly appreciated.

On the other hand, learned Advocate General appearing for the State in the appeals filed by the landowners seeking further enhancement of compensation submitted that there are two aspects of the matter. For assessment of compensation, reliance has been placed on sale deeds (Ex. P1 and Ex. P3 in LAC No. 139 of 2008). In fact, both the aforesaid sale deeds are liable to be ignored for the reason that the land pertaining to sale deed (Ex. P1 in LAC No. 139 of 2008) is located on NH-8, whereas the area dealt with in sale deed (Ex. P3 in LAC No. 139 of 2008) is too small for assessing the value of large chunk of land in question, hence, both of them are not relevant and deserve to be ignored. However, genuineness of the sale deeds produced by the landowners has not been challenged by the learned Advocate General.

He further submitted that if the aforesaid sale deeds are to be considered, then the issue required to be considered would be as to whether same amount of compensation is to be awarded to the landowners or a reasonable cut has to be applied considering the strategic location of the land pertaining to the aforesaid sale deeds vis-a-vis large chunk of land acquired and the location thereof, part of which was abutting NH-8, whereas major chunk was far behind. Only the land pertaining to the revenue estates of village Khandsa and Narsingpur was abutting NH-8 and rest was behind that. Though the learned court below has determined value of the acquired land by making out two categories, namely, the land of revenue estates of villages Khandsa and Narsingpur on the one part and the second being land pertaining to revenue estates of villages Harsaru, Mohammadpur Jharsa and Garauli Khurd. Though for the purpose of assessment of compensation of land pertaining to revenue estates of villages Khandsa and Narsingpur, cut of 35% has been applied in terms of the average value mentioned in the sale deeds relied upon, whereas for other portion of land, cut of 50% has been applied, but there is no reasonable basis given for application of the cut. No justification is available in the impugned award of the learned Reference Court. It was further submitted that except small part of land, rest was being used for agricultural purposes. For the purpose of assessment of value, two types of cuts are applicable, namely, one for providing infrastructural facilities and second the development cost. In the case in hand, the learned court below did not consider that aspect of the matter. The land pertaining to the sale deeds relied upon had infrastructural facilities located close to it.

Learned Advocate General further submitted that the evidence was led by the landowners only pertaining to revenue estate of village Khandsa. The same was considered even for the purpose of valuation of land of other villages. The sale instances produced by the State in all the cases were ignored altogether while referring to Section 25 of the Act, which was erroneous. In fact, the sale deeds produced by the State clearly established that the award of the Collector was just and fair, rather, isolated sale transactions produced by the landowners showing exorbitant value deserved to be ignored as there may be many reasons for getting those sale deeds registered. If the sale deeds produced by the State are to be ignored, then reasonable cut is to be applied on the value as shown in the sale deeds produced by the land owners.

While referring to judgment of Hon'ble the Supreme Court in Lal Chand v. Union of India, (2009) 15 SCC 769, learned Advocate General submitted that non-consideration of the sale deeds produced by the State merely on the ground that the value shown therein was less than the award of the Collector is illegal.

It was further submitted that when the sale deeds produced by the landowners pertaining to the area of revenue estate of village Khandsa are not relevant even for the purpose of assessment of compensation in that area, these are not good even for assessment of compensation for the land pertaining to other revenue estates. Some of the sale deeds produced by the State were between the private companies, hence, were showing real value. It was further submitted that average sale consideration in the sale deeds produced by the State is below the award of the Collector, hence, the award was just and fair.

While referring to the judgment of this Court in Attar Singh's case (supra), where notifications under Section 4 of the Act were issued on 16.12.1988 and 30.1.1989, learned Advocate General submitted that the land acquired in that case is also located close to the acquired land in the present case and if increase for the time gap is considered, the value will come close to the award of the Collector, hence, no interference was called for.

Discussion

Heard learned counsel for the parties and perused the paper book and the relevant referred record.

The value of the land is being assessed in the case in hand on the basis of material whatever has been produced on record before the court below or as produced by learned counsels for the State/Corporation in court. Despite request made by the court to learned counsel for the State to provide information pertaining to different acquisitions in the area at different times along with the site plan and the value assessed therefor, no efforts were made to provide the information. The information was sought with a view to avoid anomalous assessment of compensation and also to ensure that compensation for the land, which was acquired earlier in the same area is assessed prior in time as compared to the land acquired later on. Conduct of the State is not appreciable.

Before proceeding to consider the valuation of the acquired land, it would be relevant to first refer to the location of the area.

Site plan (Ex. P41 in LAC No. 929 of 2008) is the final development plan for the controlled area for Gurgaon-Manesar Urban Complex-2021 AD. The aforesaid plan shows the area acquired for SEZ. It also shows the location of existing Gurgaon town. If one proceeds from Delhi to Jaipur on NH-8, the acquired land is towards Jaipur from the existing town. Part of it, which abuts NH-8, is abutting Sector 36. Major chunk of land pertaining to Sector 37, Gurgaon was acquired way back in the year 1988-89, vide notifications dated 16.12.1988 and 30.1.1989, issued under Section 4 of the Act. The notification for acquisition of part of land acquired for development of Sectors 34 and 35, Gurgaon was issued on 15.11.2002, where the land pertained to four revenue estates. Finally, very small portion of land, only for providing infrastructural facilities in the area was acquired, as major chunk of land was either released on account of industries being already there or was otherwise de-notified. The land pertaining to IMT, Manesar is located beyond the acquired land towards Jaipur. First acquisition for IMT, Manesar was carried out, where notification under Section 4 of the Act was issued on 15.11.1994 PW9-Om Parkash (in LAC No. 139 of 2008) stated that villages Khandsa, Harsaru, Kasan and Manesar are at a distance of 5, 10, 24 and 18 kilometers, respectively from Bus Stand, Gurgaon. Likewise, distance of villages Dhana, Sikanderpur and Wazirabad is 19, 9 and 8 kilometers, respectively from Bus Stand, Gurgaon.

The site plan showing site of SEZ, Phase-I, Gurgaon pointing out the acquired land, as produced by the learned Advocate General in court was taken on record and marked ‘X’ with the consent of learned counsel for the parties. It is evident from this plan that major chunk of land, which was released, is located quite close to NH-8, where, as stated by learned counsel for the landowners, number of industrial and commercial establishments had been set up. As informed by learned Advocate General, a portion of land mark ‘A’ in the site plan was acquired by the State and developed as Pace City. Notifications under Section 4 of the Act in that case were issued on 16.12.1988 and 30.1.1989 This Court in Attar Singh's case (supra) had upheld the award of the learned Reference Court assessing the value of the land therein @ Rs. 7,22,500/- per acre. The aforesaid portion of land is not abutting NH-8. The land of revenue estates of villages Khandsa and Narsingpur abuts NH-8. Beyond that is land of village Mohammadpur Jharsa. Thereafter is the land of revenue estates of village Harsaru and Garauli Khurd.

No information was furnished regarding acquisition of land in the area of Sector 36, Gurgaon or otherwise its development.

From the aforesaid plan, it is evident that the total area as notified under Section 4 of the Act was 1,779.40 acres, out of which 65.06 acres was released at the stage of objections under Section 5-A of the Act, 123.37 acres was released by High-Powered Committee and 12.52 acres was released by the Committee of Ministers. It is mentioned in the aforesaid plan that some area for water utilities was acquired by the Corporation before issuance of notification under Section 4 of the Act, however, the detail as to when that portion of land was acquired before issuance of notification under Section 4 of the Act was not furnished despite specific query put at the time of arguments. However, the information furnished by learned counsel for the Corporation is reproduced as under:

“1.Area acquired under Section 4 of the Act:1779.40 acres2.Area released by DRO upon Section 5-A of the Act:65.06 acres3.Area released by High Powered Committee:123.37 acres4.Pre award Litigation:65.05 acres5.Post award Litigation:60.36 acres6.Area released by Council of Ministers:12.52 acres7.Area under litigation:125.41 acres”

From the data evident from the aforesaid plan, it is clear that major chunk of land pertaining to villages Khandsa, Narsingpur and Mohmmadpur Jharsa was released either at the stage of objections or by the High Powered Committee. Some of the portions therein are still under litigation.

The details of the sale deeds, which have been referred to by learned counsel for the landowners for assessment of compensation for the entire chunk of land, are extracted below:

“Ex. in LAC No. 139/2008DateArea BighaSold BiswaAverage price per in Rs.‘P16.6.2002111949,79,000/-P319.12.2002020276,19,000/-P416.4.2001060378,05,000/-

From the site plan (Ex. R15 in LAC No. 139 of 2008), the location pertaining to the aforesaid sale deeds is evident. The land pertaining to sale deed (Ex. P1 in LAC No. 139 of 2008) is located quite close to NH-8 on the side on which the land has been acquired, whereas the land pertaining to sale deeds (Ex. P3 and Ex. P4 in LAC No. 139 of 2008) is located just opposite that in the area, which is part of Sectors 34 and 35, Gurgaon. The same is not abutting NH-8, but is otherwise connected with some passages left by the revenue authorities, as it seems that there had been no consolidation of land in this area. This plan also shows location of the land pertaining to different sale deeds, which were produced by the Corporation.

Case law

In Mehrawal Khewaji Trust's case (supra), Hon'ble the Supreme Court opined that where there are several exemplars with reference to similar lands, as a rule the highest of the exemplar in case it is a bona fide transaction has to be considered and accepted for the purpose of assessment of compensation. It is not desirable to take average of the various sale deeds produced before the court. Relevant paragraph 17 thereof is extracted below:

“17. It is clear that 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 bona fide 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 is 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. In our view, it seems to be only fair that where sale deeds pertaining to different transactions are relied on behalf of the Government, the transaction representing the highest value should be preferred to the rest unless there are strong circumstances justifying a different course. It is not desirable to take an average of various sale deeds placed before the authority/court for fixing fair compensation.”

In case titled as Viluben Jhalejar Contractor (Dead) By Lrs. v. State Of Gujarat, 2005 (2) RCR (Civil) 492, Hon'ble the Supreme Court laid down certain broad principles for determination of compensation for the acquired land. Relevant paras are reproduced hereunder:-

17. Section 23 of the Act specifies the matters required to be considered in determining the compensation; the principal among which is the determination of the market value of the land on the date of the publication of the notification under subsection (1) of Section 4.

18. One of the principles for determination of the amount of compensation for acquisition of land would be the willingness of an informed buyer to offer the price therefor. It is beyond any cavil that the price of the land which a willing and informed buyer would offer would be different in the cases where the owner is in possession and enjoyment of the property and in the cases where he is not.

19. Market value is ordinarily the price the property may fetch in the open market if sold by a willing seller unaffected by the special needs of a particular purchase. Where definite material is not forthcoming either in the shape of sales of similar lands in the neighbourhood at or about the date of notification under Section 4(1) or otherwise, other sale instances as well as other evidences have to be considered.

20. 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 by placing the two in juxtaposition. The positive and negative facts are as under:-

Positive factsNegative factors(i) smallness of size(i) largeness of area(ii) proximity to a road(ii) situation in the interior at a distance from the road(iii) frontage on a road(iii) narrow strip of land with very small frontage compared to depth(iv) nearness to developed(iv) lower level requiring area the depressed portion to be filled up(v) regular shape(v) remoteness from developed locality(vi) level vis-a-vis land under(vi) some special acquisition disadvantageous factors which would deter a purchaser(vii) special value for an owner of an adjoining property to whom it may have some very special advantage.

21. Whereas a smaller plot may be within the reach of many, a large block of land will have to be developed preparing a layout plan, carving out roads, leaving open spaces, plotting out smaller plots, waiting for purchasers and the hazards of an entrepreneur. Such development charges may range between 20% and 50% of the total price.”

In case titled as Haridwar Development Authority, Haridwar v. Raghubir Singh, 2010 (2) RCR (Civil) 301, Hon'ble the Supreme Court laid down certain guidelines for assessment of compensation which are as under:

“6. The question whether the acquired lands have to be valued uniformly at the same rate, or whether different areas in the acquired lands have to be valued at different rates, depends upon the extent of the land acquired, the location, proximity to an access road/Main Road/Highway or to a City/Town/Village, and other relevant circumstances. We may illustrate:

(A) When a small and compact extent of land is acquired and the entire area is similarly situated, it will be appropriate to value the acquired land at a single uniform rate.

(B) If a large tract of land is acquired with some lands facing a main road or a national highway and other lands being in the interior, the normal procedure is to value the lands adjacent to the main road at a higher rate and the interior lands which do not have road access, at a lesser rate.

(C) Where a very large tract of land on the outskirts of a town is acquired one end of the acquired lands adjoining the town boundary, the other end being two to three kilometers away, obviously, the rake that is adopted for the land nearest to the town cannot be adopted for the land which is farther away from the town. In such a situation, what is known as a belting method is adopted and the belt or strip adjacent to the town boundary will be given the highest price, the remotest belt with be awarded the lowest rate, the belts/strips of lands falling in between, will be awarded gradually reducing rates from the highest to the lowest.

(D) Where a very large tract of land with a radius of one to two kilometres is acquired, but the entire land acquired is far away from any town or city limits, without any special Main road access, then it is logical to award the entire land, one uniform rate. The fact that the distance between one point to another point in the acquired lands, may be as much as two to three kilometres may not make any difference.”

In case titled as Thakur Kuldeep Singh (D) Thr. L.R v. Union of India, 2010 (2) RCR (Civil) 372, Hon'ble the Supreme Court opined as under:-

“6. Sections 23 and 24 of the Act speak about the matters to be considered and to be neglected in determining compensation. Let us consider whether the appellants are entitled to higher compensation than that of the one fixed by the High Court or Union of India is justified in seeking reduction of the market value/compensation for the acquired land. While fixing compensation, it is the duty of the Land Acquisition Collector as well as the Court to take into consideration the nature of the land, its suitability, nature of the use to which the lands are sought to be acquired on the date of notification, income derived or derivable from or any other special distinctive feature which the land is possessed of, the sale transactions in respect of land covered by the same notification are all relevant factors to be taken into consideration in determining the market value. It is equally to consider the suitability of neighbourhood lands as are possessed of similar potentiality or any advantageous features or any special characteristics available. The Land Acquisition Collector as well as the Court should always keep in their mind that the object of assessment is to arrive at a reasonable and adequate market value of the land. While doing so, imagination should be eschewed and mechanical assessment of evidence should be avoided. More attention should be on the bona fide and genuine sale transactions as guiding star in evaluating the evidence. The relevant factor would be that of the hypothetical willing vendor would offer for the land and what a willing purchaser of normal human conduct would be willing to buy as a prudent man in normal market conditions prevailing in the open market in the locality in which the acquired lands are situated as on the date of notification under Section 4(1) of the Act. In other words, the Judge who sits in the armchair of the willing buyer and seek an answer to the question whether in the given set of circumstances as a prudent buyer he would offer the same market value which the court proposed to fix for the acquired lands in the available market conditions. The market value so determined should be just, adequate and reasonable.”

In Trishala Jain's case (supra), Hon'ble the Supreme Court opined that in the cases of determination of compensation for the acquired land, it is not possible to fix the same with mathematical or arithmetical accuracy. Some guess work has to be applied. The acquisition of land falls within the purview of eminent domain of the State. It is compulsory acquisition as against voluntary sale. No person can be deprived of his property save by authority of law. The Act provides for complete procedure for acquisition of land and secondly determination of compensation to be paid to the landowners. Relevant paragraphs thereof are extracted below:

“56. More often than not, it is not possible to fix the compensation with exactitude or arithmetic accuracy. Depending on the facts and circumstances of the case, the court may have to take recourse to some guesswork while determining the fair market value of the land and the consequential amount of compensation that is required to be paid to the persons interested in the acquired land.

57. “Guess” as understood in its common parlance is an estimate without any specific information while “calculations” are always made with reference to specific data. “Guesstimate” is an estimate based on a mixture of guesswork and calculations and it is a process in itself. At the same time “guess” cannot be treated synonymous to “conjecture”. “Guess” by itself may be a statement or result based on unknown factors while “conjecture” is made with a very slight amount of knowledge, which is just sufficient to incline the scale of probability. “Guesstimate” is with higher certainty than more “guess” or a “conjecture” per se.

xx xx xx

63. Under the Act, as settled by various judgments of this Court, there are different methods of computation of compensation payable to the claimants, for example it can be based upon comparable sale instances, awards and judgments relating to the similar or comparable lands, method of averages, yearly yields with reference to the revenue earned by the land, etc. Whatever method of determining the compensation is applied by the court, its result should always be reasonable, just and fair as that is the purpose sought to be achieved under the scheme of the Act. For attaining that purpose, application of some guesswork may be necessary but this principle would have hardly any application in a case of no evidence. In other words, where the parties have not brought on record any evidence, then the court will not be in a position to award compensation merely on the basis of imagination, conjecture, etc.

64. These precedents clearly demonstrate that the court may apply some guesswork before it could arrive at a final determination, which is in consonance with the statutory law as well as the principles stated in the judicial pronouncements. As already noticed, the guesswork has to be used for determination of compensation with greater element of caution and the principle of guesstimation will have no application to the case of “no evidence”. This principle is only intended to bridge the gap between the calculated compensation and the actual compensation that the claimants may be entitled to receive as per the facts of a given case to meet the ends of justice.

65. It will be appropriate for us to state certain principles controlling the application of “guesstimate”:

(a) Wherever the evidence produced by the parties is not sufficient to determine the compensation with exactitude, this principle can be resorted to.

(b) Discretion of the court in applying guesswork to the facts of a given case is not unfettered but has to be reasonable and should have a connection to the data on record produced by the parties by way of evidence. Further, this entire exercise has to be within the limitations specified under Sections 23 and 24 of the Act and cannot be made in detriment thereto.

66. Applying these principles to the facts of the present case, we have to take recourse to the “principle of guesstimation” inasmuch as it is essential for fixation of fair market value of the land which shall be the basis for determining the compensation payable to the claimants. Now, we will discuss the evidence led by the parties in that behalf.”

Hon'ble the Supreme Court in Atma Singh v. State of Haryana, (2008) 2 SCC 568 opined that for ascertaining the market value of the land, the potentiality of the acquired land should also be taken into consideration. Relevant paragraph thereof is extracted below:

“5. 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. It is well settled that market value of a property has to be determined having due regard to its existing condition with all its existing advantages and its potential possibility when led out in its most advantageous manner. The question whether a land has potential value or not, is primarily one of the fact depending upon its condition, situation, uses 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 nearabout town is developing or has prospect of development have to be taken into consideration.”

The aforesaid judgment was subsequently referred to in Digamber v. State of Maharashtra, (2013) 14 SCC 406.

In Lal Chand's case (supra), Hon'ble the Supreme Court opined that Section 25 of the Act requires that the courts should not award an amount which is less than what is awarded by the Collector even if the evidence may show lesser value. Bar is not with regard to determination of market value, which is less than assessed by the Collector, but bar is for reduction of compensation below the amount awarded by the Collector. The sale deeds relied upon by the State cannot be ignored merely because the Collector had awarded more compensation. However, while considering relevance of the sale deeds produced by the State therein, showing market value of the land less than that was awarded by the Collector, Hon'ble the Supreme Court opined that because of availability of several other sale deeds showing much higher value of the land in the area coupled with the fact that even the Collector had awarded more compensation than the value as shown in the sale deeds produced by the State in evidence, leads to an inevitable inference that the sale deeds produced by the State were either under-valued or were distress sale. Those were not considered in the aforesaid judgment. The value of the land was assessed while placing reliance upon the sale transactions of small plots produced by the landowners after applying cut.

In Chandrashekar (dead) by Lrs v. Land Acquisition Officer, (2012) 1 SCC 390, while referring to the earlier judgment in Lal Chand's case (supra) and A.P Housing Board v. K. Manohar Reddy, (2010) 12 SCC 707, Hon'ble the Supreme Court opined that where the sale transaction for a small piece of developed land is to be considered for the purpose of assessment of market value of a large tract of undeveloped acquired land, the range of deduction could be from 20% to 70%. In the aforesaid judgment, further reference was made to earlier judgment of Hon'ble the Supreme Court in Subh Ram v. State of Haryana, (2010) 1 SCC 444, where deduction was fixed on two factors at 67%. The judgment in Subh Ram's case was explained while opining that 67% is the upper bench mark. It was further opined that if the maximum range of reduction could go upto 75% and the maximum limit fixed in Subh Ram's case on account of development being 67%, on what account additional deduction is to be made. Certain instances were given, such as the waiting period required for raising infrastructure for sale of plots/houses. The exemplar sale transaction, being of a date subsequent to the publication of the preliminary notification, can be placed in the category of “de-escalation”. There may be other valid reasons in different cases. The upper limit was fixed as 75%. In case deduction in excess of 75% has to be made, that would not be a relevant sale transaction for determining of compensation of the acquired land. In such a situation, the exemplar land and the acquired land would be incomparable. It is not compulsory that on account of development, cut of 67% has to be imposed and for other things it had to be 8%. The percentage of cut for different reasons can vary, however, putting together the maximum shall not be more than 75%. The cut on account of development is for providing infrastructure facilities, as a result of which the plotable area reduces and the second being the development cost.

Assessment of value of acquired land

In the case in hand, the site plan produced in court and taken on record and marked ‘X’, if seen along with plan (Ex. R23 in LAC No. 929 of 2008), it is evident that the place where learned counsel for the State pointed out that Pace City had been developed after acquisition of land by HUDA in the year 1988, is forming part of Sector 37, Gurgaon. As is evident from the aforesaid plan (Ex. R23 in LAC No. 929 of 2008), the area of Sector 37, Gurgaon was outside the municipal limits of Gurgaon. Adjoining to Sector 37 towards the city of Gurgaon is Sector 10-A, part of which is shown to be within the municipal limits, whereas part outside. The acquisition of land for development as Sector 10-A, Gurgaon, pertaining to the revenue estate of village Kadipur was made vide notification dated 14.9.1983, where the Collector had assessed the value of different kinds of land from Rs. 16,000/- per acre to Rs. 45,000/- per acre, which was enhanced to Rs. 33/- per square yard by this Court in RFA No. 795 of 1990-Devi Singh (deceased) through LR's Bishamber v. The Land Acquisition Collector, decided on 22.9.2008

The acquisition of land for development as Pace City (Sector 37), pertaining to the revenue estates of villages Khandsa, Kadipur, Naharpur Rupa and Jharsa was made vide notifications dated 16.12.1988 and 30.1.1989, where the Collector had assessed the value of of different kinds of land from Rs. 1,25,000/- to Rs. 1,75,000/- per acre. The land pertaining to Sector-37 (Pace City), Gurgaon is located adjoining to Sector 10-A towards Jaipur from Gurgaon. The compensation assessed by the learned Reference Court @ Rs. 7,22,500/- per acre pertaining to the entire land of Pace City was upheld by this Court in Attar Singh's case (supra). For the time gap of 5 years and 3 months viz-a-viz the land acquired for Sector 10-A, there was increase in the award of compensation to the landowners therein with an annual increase of about 34 to 35% with cumulative effect, which shows the value, potentiality and development activities in the area.

The Collector in the present case had awarded compensation @ Rs. 15,00,000/- per acre for the land pertaining to revenue estates of villages Khandsa and Narsingpur and Rs. 12,50,000/- per acre for the land pertaining to revenue estates of villages Harsaru, Mohammadpur Jharsa and Garauli Khurd. It was about 10 times with reference to earlier award of the Collector for village Khandsa.

The awards passed by the Reference Court (Ex. P21 and Ex. P22 in LAC No. 139 of 2008) and judgment of this court (Ex. P23 in LAC No. 139 of 2008) sought to be referred to by learned counsel for the landowners pertaining to acquisition of land of villages Chakarpur, Wazirabad, Kanhai, Samaspur and Bindapur, Tehsil and District Gurgaon are not relevant, as location thereof is not comparable. The land, subject-matter in the aforesaid cases, is close to Delhi Border or nearby.

As far as the sale deeds produced by the State/Corporation are concerned, as stated by learned counsel for the State, the average sale consideration of the sale deeds produced with reference to revenue estates of villages Khandsa and Narsingpur was Rs. 14,28,000/- per acre, which is less than the award of the Collector, i.e, Rs. 15,00,000/- per acre and the average sale consideration of the sale deeds produced with reference to revenue estates of villages Garauli Khurd, Harsaru and Mohammadpur Jharsa was Rs. 11,71,000/- per acre, which also is less than the award of the Collector, i.e, Rs. 12,50,000/- per acre, hence, have rightly been rejected.

Though award of Reference Court (Ex. P24 in LAC No. 139 of 2008) pertaining to acquisition of land in villages Kasan, Bas Kusla, Bas Haria and Dhana, Tehsil and District Gurgaon and judgment of Hon'ble the Supreme Court (Ex. P25 in LAC No. 139 of 2008) pertaining to acquisition of land in villages Manesar, Naharpur Kasan, Khoh and Kasan, Tehsil and District Gurgaon for setting up of IMT, Manesar may not be directly relevant for the purpose of assessment of compensation for the acquired land in the present case, however, still it shows the pace of development activities in the area. IMT, Manesar is located at a distance of about 20 kilometers from village Khandsa. First planned development activity started in that area with the acquisition of land vide notification dated 15.11.1994, where compensation @ Rs. 20,00,000/- per acre was assessed by Hon'ble the Supreme Court in Pran Sukh's case (supra). Thereafter subsequent acquisitions were made for Phases-II to VI of IMT, Manesar at different times.

As far as the sale deeds produced by the landowners are concerned, in my opinion, the sale deeds (Ex. P1, Ex. P3 and Ex. P4 in LAC No. 139 of 2008) are relevant. The learned court below has wrongly taken sale deed (Ex. P4 in LAC No. 139 of 2008) out of consideration for the reason that on two sides of the land purchased by the vendee therein, he was already having his establishment. No doubt, that factor can add to the value or the paying capacity of the buyer of the land, however, the fact remains that the sale-deed in question was registered about 8 months prior to the date of issuance of notification under Section 4 of the Act and further there is another sale deed (Ex. P3 in LAC No. 139 of 2008) on record showing the value, which is quite close to the value as depicted in the sale deed (Ex. P4 in LAC No. 139 of 2008). In my opinion, the consideration as shown in sale deeds (Ex. P1, Ex. P3 and Ex. P4 in LAC No. 139 of 2008) deserve to be averaged considering their different locations, as the land pertaining to one of them is located on NH-8, whereas the land pertaining to two of them, though located on some rasta, but not in the area which had been planned and developed. In fact, there had been no consolidation in the area pertaining to all the three sale deeds. The average sale consideration paid in the aforesaid sale deeds comes out to Rs. 68,01,000/- per acre, which is rounded off to Rs. 68,00,000/- per acre.

Now the question is as to whether same should be awarded as the amount of compensation or some cut is required to be applied. A perusal of the site plans (Ex. R15 in LAC No. 139 of 2008) and mark ‘X’ taken on record show that the land pertaining to the aforesaid three sale deeds (Ex. P1, Ex. P3 and Ex. P4 in LAC No. 139 of 2008) is not pertaining to sale of developed plots by any agency where normally plotable area is about 50% and substantial amount is spent on development. The cut is applied keeping in view the aforesaid facts. Still the fact remains that the land pertaining to all the three sale deeds had approach roads as the land of sale deed (Ex. P1 in LAC No. 139 of 2008) was abutting the main road, whereas the land pertaining to sale deeds (Ex. P3 and Ex. P4 in LAC No. 139 of 2008) was abutting some rasta left out in unplanned area. Meaning thereby the level of cut, which is imposed where the sale transaction of a developed plot is to be relied upon, cannot be applied in the case in hand. Further, it has been pointed out by learned counsel for the landowners that even for the land, which is released from acquisition but forming part of the developed area, the owners of the released land are required to pay fee for change of land use and external development charges. However, still as the land pertaining to the aforesaid sale deeds is located on the main road or close to the main road and assessment of large chunk of land is required to be made and further if no other facilities were available, still it had connectivity with road, some reasonable cut is required to be applied. In my opinion, cut of 15% would be reasonable in the case in hand. After applying the same, the value of the acquired land would come out to Rs. 57,08,000/- per acre.

Another question which arises is as to whether entire chunk of land deserves to be assessed at the same rate or there have to be some different rates for different areas considering the location. From the site plans mark ‘X’ taken on record and Ex. R3 (LAC No. 929 of 2008), it is evident that the land pertaining to the revenue estates of villages Khandsa, Narsingpur and Mohammadpur Jharsa is located close to NH-8 or the area of Sector 37, Gurgaon, which had already developed, and also the area where lot of industrial activities had already started, as is evident from release of 188.43 acres of land either at the stage of objections under Section 5-A of the Act or by the High Powered Committee and further release of 12.52 acres of land by Council of Ministers. It is also evident from the site plan that 125.41 acres of land is under litigation, major part of which is located in the acquired land. Hence, in my opinion, value of the land pertaining to revenue estates of villages Khandsa, Narsingpur and Mohammadpur Jharsa deserve to be assessed at that rate.

As the land pertaining to revenue estates of villages Harsaru and Garauli Khurd is located far off from NH-8, it cannot be awarded the same amount of compensation. For assessment thereof, considering its distance from NH-8 and city, in my opinion, cut of 40% would be reasonable. After applying the same, the value of land pertaining to the revenue estates of village Harsaru and Garauli Khurd is assessed @ Rs. 40,80,000/- per acre.

For the reasons mentioned above, the appeals as well as the cross objections filed by the landowners are allowed. They are held entitled to compensation @ Rs. 57,08,000/- per acre for the land pertaining to revenue estates of villages Khandsa, Narsingpur and Mohammadpur Jharsa and @ Rs. 40,80,000/- per acre for the land pertaining to revenue estates of villages Harsaru and Garauli Khurd. They shall also be entitled to all statutory benefits available to them under the Act. The appeals filed by the Corporation are dismissed.