The lands bearing Sy.Nos.57/2, 58/1, 59/2, 57/2 and 69 of Shaikh Roza, Sy.Nos.187/4 and 187/2 of Taj Sulthanpur and Sy.Nos.16/2, 78/4 and 78/5 of Jafrabad which are the subject matter in these appeals were acquired by the notification dated 19.05.2005 issued under Section 4(1) of the Land Acquisition Act for laying the new broad-gauge railway line from Bidar to Gulbarga. The Land Acquisition Officer through the award determined the market value at Rs.1,25,500/- per acre in respect of the lands situate in Shaikh Roza, Rs.71,500/- per acre in respect of lands situate in Jafrabad and Rs.63,500/- per acre in respect of lands situate in Taj Sulthanpur.
2. The landlosers claiming to be aggrieved by the same had filed the protest petition under section 18 of la act which came to be referred to the Reference Court. - 24 - The reference in LAC Nos. 361, 344, 345, 350, 352/2010 and 33, 34/2011 were considered together and by the common judgment dated 29.09.2012 the Reference Court fixed the market value at Rs.84/- per sq.ft. in respect of the lands in Shaikh Roza, at Rs.65/- per sq.ft. in respect of the lands in Taj Sulthanpur and Jafrabad. In respect of the said judgment, the appeals in MFA Nos.30233, 30228, 30232, 30230, 30231 and 30229/2013 are filed by the beneficiary. The Acquiring Authority has assailed the same in MFA Nos.32811, 32806, 32810, 32808, 32809, 32807/2013. The landlosers on the other hand have filed the cross objection Nos.1582, 1578, 1579, 1580, 1583 and 1581/2013.
3. In respect of the land bearing Sy.No.69 in Shaikh Roza, the determination of the market value arose for consideration in LAC No.100/2008, wherein the Reference Court has fixed the market value at Rs.187.50ps. per sq. ft., through the judgment dated 13.12.2012. The beneficiary has assailed the same in - 25 - MFA No.31191/2013 while the Acquiring Authority has assailed it in MFA No.32805/2013.
4. Insofar as the land bearing Sy.Nos.78/4 and 78/5 the determination of market value was considered in LAC Nos.313 and 315/2010. The Reference Court by the common judgment dated 13.08.2015 has determined the market value at Rs.142/- per sq.ft. The beneficiary has assailed the same in MFA Nos. 200360 and 200361/2016.
5. Since in all these matters the lands in question are acquired under the same notification, for the same purpose and situate in the same locality as also since the contentions relating to the nature of the property is similar, they are clubbed and heard together. Accordingly they are considered and disposed of through this common judgment. - 26 -
6. Heard Sri Manvendra Reddy, learned counsel, Ms. Archana Tiwari, learned Government Advocate, Sri Harshavardhan R. Malipatil and Sri Shivanand Patil, learned counsel for the respective parties and perused the appeal papers including the records received from the Reference Court.
7. The grievance essentially raised on behalf of the appellants is that the Reference Court has wrongly considered the lands in question as having non- agricultural potential though the lands in question are agricultural lands and has discarded the exemplar sale deeds relating to agricultural property which had been produced by the beneficiary and the Acquiring Authority. In that view, it is contended that the Reference Court has committed an error in relying upon a sale deed of a small extent of land that too which is a site purchased in the auction conducted by the Gulbarga Development Authority which cannot be considered as comparable. In that regard, reference is made by the learned counsel - 27 - to the evidence which was available before the Court below and reliance is also placed on the documents produced as additional document in I.A.No.1/2015 in MFA No.31191/2013 and I.A.No.1/2014 in MFA No.30228/2013. In that view, it is contended that the market value as determined is highly exorbitant in respect of the lands which are away from the Gulbarga City. Learned counsel for the respondents and the cross objectors would not only seek to sustain the judgment and award passed by the Reference Court, but would also contend that insofar as the lands to which the cross objections have been filed, the market value is required to be enhanced as the deduction made by the Reference Court is on the higher side. That apart, it is contended that the laying of the railway track has bifurcated the land, thus reducing its utility for the purpose as it was envisaged which also is to be compensated.
8. Before adverting to the factual determination, it is necessary to take note of the judgments relied on by - 28 - the learned counsel laying down the principle regarding determination of the market value and the factors to be taken into consideration so as to keep in view whether the Reference Court has kept in perspective the law on the subject before arriving at its conclusion.
9. Learned counsel for the appellants has relied on the following decisions:
i) Basant Kumar and Others vs- Union of India and Others (1996) 11 SCC 542 wherein it is held that treating the entire village as one unit and uniformly determining the compensation on that basis is not sustainable. The Court must determine the market value prevailing as on the date of the notification and not what was claimed by the parties. ii) Kanwar Singh and Others vs- Union of India (1998) 8 SCC 136, wherein it is held that though bona fide sale transaction showing price paid for - 29 - similar lands with similar advantages is well recognised, however unless proved otherwise the situation and potentiality of land situated in two villages would be different. Final judgments in respect of comparable sales cannot be relied upon if they had been pursued on wrong point of law or inactively or disinterestedly pursued owing to negligence or connivance. iii) Executive Engineer, Karnataka Housing Board vs- Land Acquisition Officer, Gadag and Others (2011) 2 SCC 246, wherein it is held that the Courts should be slow to rely upon auction sale transactions when other regular traditional sale transactions are available. Element of competition in auction sales makes them unsafe guide for determining market value. The Hon'ble Supreme Court therein has also applied the principle of deducting 20% from the auction price. - 30 - iv) Pehlad Ram and Others vs- Haryana Urban Development Authority and Others (2014) 14 SCC 778, wherein it is held that when acquisition of land takes place soon after its purchase, consideration amount paid is the best evidence for determination of market value.
v) Union of India vs- Raj Kumar Baghal Singh (Dead) Through L.Rs. and Others (2015) SCCR 32, wherein it is held that in determining compensation for acquired land, price paid in a bona fide transaction of sale by a willing seller to a willing buyer is adopted subject to such transaction being adjacent to acquired land, proximate to date of acquisition and possessing similar advantages. In the absence of any evidence of a similar transaction, it is permissible to take into account transaction of nearest land around the date of notification by making suitable allowance. - 31 - vi) State of Haryana vs- Mukhtiar Singh and Others (2014)15 SCC 678, wherein it is held that the similar sale deeds are to be looked into and in a circumstance where it was not looked into, the matter was remanded.
10. Learned counsel for the respondents relied on the following decisions:
i) Mohinder Singh & Ors. vs- State of Haryana 2014 SAR (Civil) 905 wherein after taking into consideration the nature of the land and the development in the surrounding, keeping in view the potential for development of the acquired land, the deduction of 25% made by the Reference Court was held appropriate. ii) Chandrabhan (Dead) through L.Rs. and Others vs- Ghaziabad Development Authority and Others (2015) 15 SCC 343 wherein the reliance placed on sale deeds of smaller extents and adopting - 32 - comparable sales method for valuation of land and making 30% deduction towards development charges was held appropriate. iii) Atma Singh (dead) through L.Rs. and Others vs- State of Haryana and Another (2008) 2 SCC 568 wherein it is held that the exemplars of small pieces of land cannot be a ground to discard them when exemplars of large pieces of similar land were not available. iv) Abdul Khader and Others vs- Assistant Commissioner and Land Acquisition Officer, Bijapur and Another 2015 (2) KCCR 1943 (DB) wherein it is held that if parity in determining market value is not maintained, it will result in serious prejudice, injustice and discrimination against similarly placed land owners whose lands are acquired against their consent compulsorily. - 33 -
v) K.S. Shivadevamma vs- Assistant Commissioner and Land Acquisition Officer ILR 1992 KAR 3740 (DB) wherein it is held that while considering the potential value the Court has to be satisfied that there is a reasonable possibility of the land in question being developed in the near future. The sale price of a small site if applied uniformly to the entire block of land would include the value of land to be covered by roads and drains when a layout is formed. Such gross figure also would include charges and expenses incurable for formation of layout. Therefore appropriate deduction normally at 53% has to be made to arrive at the real market value of the sites to be formed. Inevitably some amount of arbitrariness has been recognised while evaluating the market value. vi) The Executive Enginner (Elecl) (O and M) Division, Karnataka Electricity Board and Ors. vs- The Assistant Commissioner and Land Acquisition Officer and Others ILR 2005 KAR 2183(DB) wherein - 34 - it is held that the acid test is where the willing vendor might reasonably expect to obtain the price from the willing purchaser and such price would form the basis to fix the market value. The Court for ascertaining the market value can rely on such transactions and reliance can also be placed on sale deeds of smaller extents to determine the value of larger extents.
11. A cumulative consideration of the judgments cited by all the learned counsel would only reiterate the well established position relating to determination of market value based on the value of comparable land and the price paid in similar transactions. When large tract of land is acquired, if comparable sale deed of large tract is available, it would form an appropriate basis. However while determining the potentiality of the land, the sale deeds of small extents of land in the same area can also be taken as the basis, keeping in view the development of the area and if it is to the satisfaction of the Court that the land acquired had also such potential, there is no bar - 35 - to rely on such transactions and determine the market value by providing appropriate deduction depending upon the facts and circumstances.
12. If the above proposition is kept in view and in that light the contention that the lands in question had non-agricultural potential is taken into consideration, the nature of determination as made by the Reference Court and the material that was available and was relied upon by the Reference Court is to be taken note in the present facts.
13. While considering the case in the common judgment dated 29.09.2012 in LAC No.361/2010 and connected cases, the Reference Court has taken into consideration the evidence tendered by one of the landlosers as P.W.1 and relied on the documents at Exhs.P1 to P55. The evidence of RW1 on behalf of the beneficiary and the documents at Exhs.R1 to R43 were taken into consideration. In LAC No.100/2008 to render - 36 - the judgment dated 13.12.2012, the evidence tendered by the landloser as P.W.1 and the documents at Exhs.P1 to P45 as also the evidence tendered by RW1 and the documents at Exhs.R1 to R21 and the compact disc which was taken as material object was considered. In rendering the judgment dated 13.08.2015 in LAC No.313/2010 and connected cases, the evidence tendered by the landloser as P.W.1 and the documents at Exhs.P1 to P52 as also the evidence of RW1 and the documents at Exhs.R1 to R17 were taken into consideration. Though in the said three set of cases the evidence has been recorded, the ultimate consideration to arrive at the conclusion that the land has non- agricultural potential and in that light, the determination of the market value is essentially on the same set of documents though they are marked as exhibits having different numbers in the three sets of cases. Hence, we find it appropriate to at the outset take into consideration the analysis made in LAC No.361/2010 and connected cases as the nature of the land would be similar in the - 37 - other two cases and the only question would be with regard to the nature of deduction if ultimately the potential of the land is kept in perspective and its proximity from the exemplar land is taken into consideration.
14. At this juncture, it is necessary to take note that except in LAC No.313 and 315/2010 where the land bearing Sy.Nos.78/4 and 78/5 of Jafrabad being already converted land for non-agricultural purpose in all the remaining cases the lands were claimed to have non- agricultural potential though factually not yet converted. In that regard, at the outset, to indicate the potential of the land, the landlosers have relied on the documents at Exhs.P12 to P28 which are the copies of the conversion orders for having converted to non-agricultural purpose of similar lands in the vicinity to indicate that the land in question has such potential to be utilised for purposes other than agriculture thereby increasing its market value. The document at Ex.P29 is the notification - 38 - issued by the Urban Development Authority bringing the lands within the planning area. As against the said documents, the respondents had produced the photographs at Exhs.R34 to 42 and the compact disc at R43 to indicate the exact status of the land as continuing to be an agricultural land as seen at the spot. The Reference Court in fact has made detailed reference to the said documents, in the background of the documents at Exhs.P8 and P9 viz., the Master Plan as also the notification dated 29.11.1965 for the Gulbarga City Planning as per which it includes the area comprised in Shaikh Roza, Jafrabad and Taj Sulthanpur. In the Master Plan, the area is reserved for residential purpose shown in yellow colour. In that background, the reliance placed by the respondents to the photographs or the present status of the land or any other land being sold as agricultural land would not be material inasmuch as the aspect which is to be taken note is the purpose for which the land is required to be used as per the Master Plan and the potential to do so as - 39 - also the intention of the land user to use it as such, but for the compulsory acquisition, whereby the value of the land would increase.
15. In that regard, reference is also made to the contention relating to the developments that have taken place in the surrounding area with the establishment of educational institutions, commercial complexes, UAS Raichur, Central University-Kadaganchi, Mahatma Gandhi Truck Terminal, APMC Yard, Ayurvedic Hospital, etc. It is in that view, the Reference Court has arrived at the conclusion that the area in question has high non- agricultural potential. A similar consideration has been made in the connected reference cases which are also the subject matter in these appeals. It is also necessary to take note that the appellants in order to contend that the documents as taken note by the Reference Court relating to the urban status of the property would not be justified, has sought to rely on the additional document produced along with the application, a notification - 40 - dated 25.09.1997 issued by the Corporation of City of Gulbarga. From the same, it is sought to be contended that the lands in survey numbers which are the subject matter in these proceedings in Shaikh Roza, Jafrabad and Taj Sulthanpur have not been included in the said notification as urban property and as such, it should be considered as agricultural property.
16. Having perused the same, it is seen that it is a notification issued under Section 3 of the Karnataka Municipal Corporations Act, 1976 (the KMC Act for short) to bring such of those properties indicated in the schedule thereto, within the larger urban area of Gulbarga to be called the Gulbarga City Corporation. In our opinion, the said notification cannot change the status of the land as determined to be of non-agricultural potential for the reason that such notification dated 25.09.1997 is only to bring the property within the Corporation limit based on the population of the area, density of the population in such area and the other - 41 - requirements as contemplated in section 3 of the kmc act. Therefore that aspect cannot take away the fact that the lands are within the planning area of the city as per Ex.P9 and has non-agricultural potential. That apart, as rightly pointed out by the learned counsel for the respondents, a Division Bench of this Court in MFA No.3125/2004 by its judgment dated 28.11.2007 has taken into consideration the nature of the property as having non-agricultural potential though they were agricultural lands and in the said case, the land bearing Sy.No.56 of Shaikh Roza village was also the subject matter. In addition, another Co-ordinate Bench of this Court in MFA No.201138/2014 dated 11.12.2014 has considered the nature of the development in the said area and has accepted that another extent of land in Shaikh Roza bearing Sy.No.31/1 is a land having non- agricultural potential. In the said cases also, the status of the land was still agricultural, but having regard to its location and the area losing its agricultural character as also the development that had taken place, has arrived at - 42 - the conclusion that the land is required to be considered as having non-agricultural potential and the market value is to be determined in that regard.
17. In that view of the matter, if the nature of consideration as made by the Reference Court is taken note, it is seen that the principle of law has been kept in perspective and with reference to the evidence has determined the status and similarity of the land as compared to the exemplar land. In that light, if the similar consideration made by the Co-ordinate Bench of this Court is also kept in perspective, we have no hesitation to hold that all the lands involved in these cases also have non-agricultural potential and the determination of the market value is to be made on that basis and not by treating it as agricultural land so as to rely on exemplar sale deeds of agricultural lands produced by the appellants either before the Reference Court or before this Court as additional documents. - 43 -
18. If the above aspect is kept in view, though the appellants had relied upon the sale deeds at Exhs.R1 to R21 relating to agricultural properties, the same cannot be treated as a reasonable exemplar for the purpose of determination of the market value. For the same reason, the sale deeds sought to be produced as additional documents in these appeals also would not be of assistance. That apart, the said sale deeds are of the year 2007 i.e., subsequent to the date of the notification. Insofar as the documents that were available before the Court below, when the sale deeds relied on by the beneficiary were not the appropriate exemplar, the sale deed dated 18.11.2003 relied upon by the landlosers at Ex.P30 though for a smaller extent of land was taken note by the Reference Court. Further while analysing the remaining documents, the judgment passed in LAC No.546/2010 as at Ex.P55 relating to Sy.No.31 of Shaikh Roza when it was acquired for the University of Agricultural Sciences was taken into consideration and the market value determined at Rs.150/- per sq.ft. was - 44 - relied upon as the exemplar for the lands in question and appropriate consideration was made.
19. As to whether such conclusion reached by the Reference Court to rely upon the award passed in LAC No.546/2010 on taking note of the sale deed dated 18.11.2003 therein was justified or not, need not be re- examined by us for the reason that the Acquiring Authority as well as the beneficiary were before this Court assailing the award dated 19.03.2012 passed in LAC No.546/2010. A Division Bench of this Court in MFA No.201138/2014 dated 11.12.2014, keeping in view the position of law as enunciated in the decisions of the Hon'ble Supreme Court which have been cited before us and listed above has upheld the conclusion of the Reference Court in that case wherein the Reference Court had relied upon the sale deed of the small extent of land which was sold in the auction conducted by the Gulbarga Development Authority. The sale deed dated 18.11.2003 in respect of the plot measuring 12 x 25 feet was - 45 - accordingly taken into consideration and the Division Bench by keeping in view the decision in the case of Executive Engineer, Karnataka Housing Board (supra) has deducted 20% of the value in view of the fact that the site was sold in a public auction and on making further deduction has approved the market value fixed at Rs.150/- per sq.ft. When such determination has been made by a Division Bench of this Court in respect of another extent of land in Shaikh Roza and the lands herein are in the same vicinity the same yardstick would have to be adopted but the deduction would vary depending on its distance from the exemplar land. If that be the position, the reference made by the learned counsel to the decision of the Division Bench of this Court in MFA No.30286/2011 dated 15.02.2013 and in MFA No.31005/2011 dated 22.02.2013 would not be of relevance as the said acquisition was of the years 1996 and 1985 respectively, after which a lot of development has taken place and that too the lands therein are not of the same place. Further this Court cannot also lose - 46 - sight of the fact that during the last decade there has been development of the property at galloping pace and increase in the market value by many-folds. Therefore on an overall consideration of all aspects of the matter, keeping in view the fact that the acquired lands are in the same vicinity though spread out are situate in the area where the development would progress and as such, the determination as made in LAC No.546/2010 and upheld in MFA No.201138/2014 and connected cases dated 11.12.2014 will have to be treated as the exemplar for determination as rightly done by the Reference Court, with appropriate deduction and adjustment keeping the advantages and disadvantages in perspective relating to land in each case.
20. Having arrived at the said conclusion, the deduction that has been adopted by the Reference Court and the determination of the market value on that basis is what requires consideration. Insofar as the lands in Sy.Nos.57/2, 58/1 and 59/2 of Shaikh Roza, though it is - 47 - in the same locality, keeping in view the distance from the exemplar sale deed area relating to the land in Sy.No.31, the Reference Court was justified in deducting 55% and arriving at the market value at Rs.84/-per sq.ft. Insofar as the land bearing Sy.No.16/2 of Jafrabad and the lands bearing Sy.Nos.187/4 and 187/2 of Taj Sulthanpur, the said lands being further away from Shaikh Roza the deduction of 65% as made would be justified and the market value fixed at Rs.65/-per sq.ft. is appropriate. The landlosers have filed the cross objections and the learned counsel on their behalf would contend that the Reference Court having taken into consideration the award in LAC No.546/2010 ought to have adopted the sale deed dated 18.11.2003 in this case also. Though such contention is raised, at the outset as held in Basant Kumar and Others (supra), the automatic application will not be justified when other aspects are also relevant. In that light, when we find the consideration as made by the Reference Court is with reference to the evidence and when the distance between - 48 - the lands can be perceived from the map produced before us, we feel that it does not call for any change.
21. With regard to the property bearing Sy.Nos.78/4 and 78/5, Jafrabad, the Reference Court while deciding LAC Nos.313 and 315/2010 has taken into consideration the sale deed dated 18.11.2003 which formed the basis for consideration by the Co-ordinate Bench in LAC No.546/2010 and had been approved by this Court. The said document was available at Ex.P30. Since the Division Bench in MFA No.201138/2012 on taking note of the same being an auction sale transaction had deducted 20% on that count and had thereafter made the further deduction towards development cost, a similar consideration is appropriate. Therefore in the instant case from Rs.353/- which is the value under the said document, 20% would have to be deducted on that basis which would bring it Rs.282.40ps. That apart, though in relation to Sy.No.16/2 of Jafrabad we have approved the deduction of 65% in LAC No.344/2010, - 49 - keeping in view the fact that the lands bearing Sy.Nos.78/4 and 78/5 which are the subject matter herein though being situate in Jafrabad, had already been converted for non-agricultural purpose incurring the development cost to that extent and also the Division Bench had deducted 60% to arrive at the market value of Rs.113/- and added the escalation. As such, we find it appropriate that the deduction at 60% be made towards development charges from Rs.282.40ps. If that be the position, the appropriate market value would be Rs.129.95 per sq.ft.
22. Similarly in LAC No.100/2008 which is the subject matter in MFA No.31191/2013 the award dated 19.03.2012 in LAC No.546/2010 which was at Ex.P33 has been relied upon. Since we have accepted the conclusion of the Reference Court which is with reference to the evidence on record as the basis in all other cases, the consideration based on the same would also be appropriate in the instant case. When the award at - 50 - Ex.P33 was taken as the basis, the deduction as made therein also should have been taken into consideration. If that was done, the market value should have been fixed at Rs.150/- per sq.ft. as both these lands have similar advantages and disadvantages.
23. The learned counsel for the respondents would contend that the deduction towards development charges would not arise when the land is acquired for railways as they would be utilising the entire acquired extent. In our opinion, the utilisation by the Acquiring Authority is not the only basis but while making such deduction what is also to be kept in view is the extent to which the benefit would have been derived by the land owner if the land was not acquired and was available to be utilised by the owner. In such event, even if the land was utilised for non-agricultural purpose, either for commercial or residential, the land owner was required to give up a portion of the land towards open areas and common amenities and would have been able to utilise or - 51 - sell only the remaining land from which he would have derived the income. Therefore the deduction in any event is required to be made. The Reference Court has committed an error in not deducting any portion of the amount from the determined amount. While considering the appropriate deduction, it is no doubt true that in respect of the properties bearing Sy.Nos.57/2, 58/1 59/2 and 57/2 of Shaikh Roza, we have approved the deduction of 55% made by the Reference Court. In the instant case, the land is situate in Shaikh Roza at Sy.No.69. From the location map, it is seen that the land in Sy.No.69 has its own distinct advantages as it abuts the highway and is very much comparable to the land considered in LAC No.546/2010 and approved in MFA No.201138/2014. Therefore keeping this aspect in view, we find it appropriate to fix the market value as done therein as it is determined after deducting towards development charges. If the same is done, the market value in respect of the land bearing Sy.No.69 in LAC No.100/2008 will be Rs.150/- per sq.ft. - 52 -
24. In the result, the following: ORDER
i) MFA Nos. 200360, 200361/2016 are allowed in part and the market value of the land bearing Sy.Nos.78/4 and 78/5 situate in Jafrabad in LAC Nos.313/2010 and 315/2010 is determined and reduced to Rs.129.95 per sq.ft. and statutory benefits. ii) MFA No. 31191/2013 is allowed in part and the market value of the land bearing Sy.No.69 situate in Shaikh Roza in LAC No. 100/2008 is determined and reduced to Rs.150/- per sq.ft. and statutory benefits. iii) The appeals in MFA Nos.30233, 30228, 30232, 30230, 30231, 30229, 32811, 32806, 32810, 32808, 32809, 32807/2013 - 53 - and MFA Crob. Nos.1582, 1578, 1579, 1580, 1583, 1581/2013 are dismissed. iv) I.A.No. I/2014 in MFA No.30228/2013 and
I.A.No.1/2015 in MFA No.31191/2013 for additional documents are disposed of as unnecessary in terms of the observation made hereinabove.
v) Modified award be drawn accordingly. Sd/- JUDGE Sd/- JUDGE hrp/Akc Ct:RRJ
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