Chandra Bhan (Dead) ... v. Ghaziabad Developmen...

Order dated 9-12-2014

(Before H.L. Dattu, C.J. and Madan B. Lokur and Dr A.K. Sikri, JJ.)

Civil Appeals Nos. 3712-17 of 2012 with Nos. 3726-70, 3772-82, 3784-89, 3819-21, 3829-39, 3841-47, 3849-904, 3917 of 2012 and 5381 of 2014

1. In this batch of appeals, the appellants have claimed enhancement of the compensation awarded by the High Court by its judgment and order dated 1-4-2008 2008 SCC OnLine All 1574 for the acquisition of their land. For convenience, we are taking into consideration the facts given in CAs Nos. 3712-17 of 2012 (appeals filed by Chandra Bhan).

2. On 16-8-1988 a notification bearing No. 4913/11-5-88-72-LA/88 was issued under Section 4 of the Land Acquisition Act, 1894 (for short “the Act”) proposing to acquire land in three villages, namely, Harsaon, Sadarpur and Dasna (Pargana Dasna), Tehsil and District Ghaziabad (Uttar Pradesh). The land was sought to be acquired for the construction and development of Sector 29, Govindpuram Avasiya Yojana of the Ghaziabad Development Authority (for short “GDA”).

3. Subsequently, a notification bearing No. 5779/11-5-88-72-LA/88 was issued under Section 6 of the Act on 3-10-1988 declaring that the land was required for a public purpose and thereafter possession of the acquired land was taken by the State Government/GDA on 14-12-1988.

4. In accordance with Section 11 of the Act, the Special Land Acquisition Officer (for short “SLAO”) passed a common award on 7-12-1990 awarding compensation to the erstwhile owners of the acquired land as follows:

Village Harsaon Rs 100 per square yard.

Village Sadarpur Rs 63.77 per square yard.

Village Dasna Rs 71.43 per square yard.

In addition to the above, statutory benefits under Section 23 of the Act were given to the erstwhile landowners including solatium at 30% of the compensation amount and additional compensation at 12% thereof.

5. Dissatisfied with the quantum of compensation awarded, the erstwhile landowners including Chandra Bhan, sought a reference before the Additional District Judge under Section 18 of the Act by an application dated 11-1-1991. After taking into account the claims made by the erstwhile landowners, the Reference Court delivered its judgment on 22-12-1999 in respect of Village Harsaon fixing compensation at Rs 163 per square yard and in addition thereto the statutory benefits were granted. On 31-5-2000 the Reference Court gave its judgment in respect of Village Sadarpur and Village Dasna and following the decision in respect of Village Harsaon, compensation at Rs 163 per square yard along with statutory benefits was granted to the claimants in these villages as well.

6. At this stage, it may be mentioned that the respondent State had filed a written statement in the Reference Court on 20-6-1992 in which it was stated that the claimant (Chandra Bhan) had accepted the award of SLAO and had received the compensation without protest and as such, the reference was not maintainable and was liable to be dismissed.

7. Based on the pleadings, the Reference Court framed three issues, namely:

(i) Is the amount of compensation awarded by the Collector low? If yes, what is the correct market rate?

(ii) Is the reference case barred by limitation?

(iii) Which reliefs are the applicants entitled to get?

It will be seen that no issue was framed on the maintainability of the reference on the ground that the claimants had accepted the compensation without any protest.

8. Be that as it may, while arriving at the compensation of Rs 163 per square yard, the Reference Court took the average of two sale deeds, namely, Ext. 18-C being a sale deed dated 23-8-1988 for an area of 57 square yards at Rs 298 per square yard and a second sale deed, namely, Ext. 16-A being a sale deed dated 11-7-1988 for an area of 150 square yard at Rs 160 per square yard. Taking an average of the two sale deeds, the Reference Court came to a figure of Rs 229 per square yard and after deducting 30% towards development cost, it arrived at a figure of Rs 163 per square yard and that was determined by the Reference Court as the market value of the acquired land and compensation to the claimants was based on this figure.

9. Dissatisfied with the compensation granted by the Reference Court, GDA preferred a batch of appeals in the High Court and similarly the claimants also preferred appeals and cross-objections.

10. The High Court after considering the material on record set aside the judgment rendered by the Reference Court thereby restoring the decision of SLAO. It is against this decision of the High Court dated 1-4-2008 2008 SCC OnLine All 1574 that the present batch of appeals has been preferred.

11. The principal contention urged by the learned counsel for GDA was that since the compensation was accepted by the claimants without any protest, the reference was not maintainable. In our opinion, this contention is without any substance for several reasons. In Ajit Singh v. State of Punjab (1994) 4 SCC 67 it was held that since the appellants therein had filed an application for reference under Section 18 of the Act, it manifested their intention. Consequently, the protest against the award of the Collector was implied notwithstanding the acceptance of compensation.

12. Similarly, in U.P. State Industrial Development Corpn. v. Rishabh Ispat Ltd. (2007) 2 SCC 248 it was held that the question whether the compensation offered was accepted without protest is essentially a question of fact to be determined on the basis of the evidence on record. On facts, it was held in that decision that there was nothing to suggest that the claimants had accepted the compensation without protest.

13. Insofar as the present appeals are concerned, although the State/GDA did aver in its written statement that Chandra Bhan had accepted the compensation without any protest, no issue was framed in this regard, and, therefore, there was no question of any evidence having been led to show that the claim was accepted without any protest. That apart, SLAO gave his award on 7-12-1990 and Chandra Bhan had filed his objections to the award and sought a reference within the prescribed time by making an application under Section 18 of the Act on 11-1-1991. His conduct clearly shows that the award passed by SLAO was not accepted without protest.

14. Additionally, we are of the opinion that in cases where a large number of claimants are involved, there will always be a few claimants who may accept the award passed by the Collector. If they are precluded from making a reference for enhancement of compensation, it could lead to an anomalous situation where out of very large number of landowners, some of them, located in scattered pockets would be entitled to the compensation only as awarded by the Collector while some of them in other scattered pockets would be entitled to claim enhancement of compensation. There would, therefore, be two distinct class of landowners similarly located and placed but receiving different amounts of compensation for the acquisition of the same land. Surely, this cannot be the intention of Section 18 of the Act.

15. In the impugned judgment and order 2008 SCC OnLine All 1574 the High Court has laid emphasis on the fact that since the claimants had accepted the compensation awarded by SLAO without protest, the reference under Section 18 of the Act was not maintainable. As we have found on facts, this is incorrect and the judgment and order passed by the High Court is, to this extent, unsustainable.

16. The learned counsel for the State/GDA relied upon Ashwani Kumar Dhingra v. State Of Punjab . (1992) 2 SCC 592 to contend that only a person who has accepted the compensation under protest is entitled to ask for a reference. The decision relied upon does not advance the case of the learned counsel. That was a case decided on its own facts pertaining to an individual in which one member of the family was satisfied with the compensation awarded to him in respect of his parcel of land and other members of the family were not and had accepted the compensation under protest. The appellant in the cited case sought to take advantage of the protest by other members of his family. This Court, in that context, referred to Section 18 of the Act and held that a person interested, in order to enable him to seek the remedy of reference can do so if he does not accept the award made by the Collector. That was also a case in which only an individual was affected and not a large number of landowners.

17. The learned counsel also submitted that the protest letter of Chandra Bhan that has been filed in this Court as a part of the paper book does not contain any date, thereby implying that the protest letter was not genuine. We cannot entertain this submission since it involves a decision on a fact that was not considered either by the Reference Court or by the High Court. However, we may only observe that in the written statement filed by the State/GDA it has not been stated anywhere when the compensation was accepted by Chandra Bhan (without protest) and the quantum thereof. On the contrary, a rather general averment has been made to the following effect:

“That the claimant(s) has/have accepted the award and has/have received the amount of compensation without protest as such the reference is legally not maintainable and is liable to be dismissed.”

18. In the absence of any definitive facts having been pleaded by the State/GDA, it is difficult to come to the conclusion that Chandra Bhan and the other claimants had accepted the compensation without protest.

19. With regard to the quantum of compensation granted by the Reference Court, we find that it has come on record that even though the Notification under Section 4 of the Act was gazetted on 16-8-1988 the last date of its publication was 1-10-1988. It has been held in several decisions including a comparatively recent decision in Usha Stud and Agricultural Farms (P) Ltd. v. State of Haryana (2013) 4 SCC 210 that the last date of publication and giving of public notice is treated as the date of publication of the notification. It was held in para 20.1 as follows:

“20.1. Section 4(1) lays down that whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company, then a notification to that effect is required to be published in the Official Gazette and two daily newspapers having circulation in the locality. Of these, one paper has to be in the regional language. A duty is also cast on the Collector, as defined in Section 3(c), to cause public notice of the substance of such notification to be given at convenient places in the locality. The last date of publication and giving of public notice is treated as the date of publication of the notification.”

20. A similar view was expressed in Surinder Singh Brar v. Union of India (2013) 1 SCC 403 in of the Report.

21. Under the circumstances, the Reference Court was justified in relying upon the two sale deeds executed before the last date of publication under Section 4 of the Act, that is, 1-10-1988. As mentioned above, Ext. 16-A was executed on 11-7-1988 and Ext. 18-C was executed on 23-8-1988 well before the last date of publication of the notification under Section 4 of the Act. In our opinion, the High Court erroneously took the view that reliance should not be placed on these sale deeds since they had come into existence either just before the issuance of the notification under Section 4 of the Act or soon after the issuance of that notification insinuating thereby that the sale deeds did not reflect the true market price of the land that was sold through those sale deeds.

22. The High Court was also in error in coming to the conclusion that because the two sale deeds Ext. 16-A and Ext. 18-C relate to small parcels of land (150 sq yd and 57 sq yd respectively) they could not be used as exemplars for determining the market value of the acquired land. It is true that the sale deeds pertain to small parcels of land but it is not usual to find sale transactions of large tracts of land that could give some indication of the market value of the acquired land. In fact, in Land Acquisition Officer v. M.K. Rafiq Saheb (2011) 7 SCC 714 it was observed that in the normal course it is hardly possible for a claimant to produce sale instances of large tracts of land. In para 24 of the Report it was held as follows:

“24. It may also be noticed that in the normal course of events, it is hardly possible for a claimant to produce sale instances of large tracts of land. The sale of land containing large tracts are generally very far and few. Normally, the sale instances would relate to small pieces of land. This limitation of sale transaction cannot operate to the disadvantage of the claimants. Thus, the court should look into sale instances of smaller pieces of land while applying reasonable element of deduction.”

23. A useful discussion on the subject is to be found in a recent decision of this Court in Nirmal Singh v. State of Haryana (2015) 2 SCC 160. It is for this reason of inexactitude that there is a constant search for an appropriate method for calculating the market value of the acquired land and one of the methods that is accepted is the comparable sales method of valuation of land.

24. In Printers House (P) Ltd. v. Saiyadan (1994) 2 SCC 133 it was held that this method generally holds good for determination of the market value of several acquired plots of land and it is preferred to other known methods of valuation of land since the variety of factors appertaining to the land, which require adjustment by the court as the valuer in determining the market value of the acquired land, would be the least. This is not to suggest that this method has to be invariably accepted since there are factors that may still require to be considered as laid down in a recent decision of this Court in Kapil Mehra v. Union of India (2015) 2 SCC 262 which contains a useful discussion on the subject.

25. Broadly speaking, as long as the sale is an arm's length transaction it would merit consideration by the authorities under the Act for the purposes of determining the market value of the acquired land. That being so, and given the facts of the case, the Reference Court was not in error in adopting the comparable sales method of valuation of land.

26. The High Court has noted, and it was pointed out by the learned counsel for the State/GDA that SLAO had before him 66 comparable sale deeds for Village Harsaon, 48 comparable sale deeds for Village Dasna and 105 comparable sale deeds for Village Sadarpur but these were overlooked. However, we have noticed from the decision rendered by the Reference Court that these sale deeds were not admissible in evidence and in fact the only sale deeds that were admissible and which were taken into account were those mentioned by the High Court, namely:

Sl. No. Paper No. Date Vendor Vendee Khasra No. Area in sq yd Rate (per square yard) 1. 10-A 8-5-1989 Smt Sarita Chauhan Tahir Ali 696/1 186 170 2. 11-A 8-5-1989 Narendra Singh Tahir Ali 694/1 84 170 3. 13-A 31-12-1987 Ratan Singh Bramh Dutt 693/2 581. 100 4. 16-A 7-9-1988 Bramh Dutt Jai Prakash Sharma 693 150 160 5. 17-A 4-11-1988/26-11-1988 Bramh Dutt Har Vilas 693 130 125 6. 18-C 23-8-1988 Kisan Gopal (Claimant in LAr No. 328/92) Charan Singh 298/1 57 298

27. As mentioned above, out of the above sale deeds, only the sale deeds at Ext. 16-A and Ext. 18-C were relevant and these were rightly taken into account for consideration by the Reference Court in granting compensation at Rs 163 per square yard for the land in all the three villages. These were sales pertaining to small parcels of land but were accepted by the Reference Court to be arm's length sales for the purposes of applying the comparable sales method of valuation of land. Nothing to the contrary has come in evidence.

28. There is no dispute that the deduction of 30% towards development charges out of the average sale price as mentioned in Ext. 16-A and Ext. 18-C was reasonable. The average sale price of the two sale deeds comes to Rs 229 per square yard and with a 30% deduction thereon, the Reference Court came to a figure of Rs 163 per square yard as the compensation due to the claimants.

29. In view of the above, the Reference Court was justified in awarding Rs 163 per square yard as compensation for the acquisition of the lands, subject-matter of these appeals, and the High Court was in error in setting aside the decision of the Reference Court and restoring the award of SLAO.

30. Accordingly, we allow these appeals and set aside the judgment and order 2008 SCC OnLine All 1574 passed by the High Court and restore the order passed by the Reference Court. The appellants will be entitled to all statutory benefits. The appeals are allowed. No costs.

Judgment dated 30-10-2015

(Before Anil R. Dave and Adarsh Kumar Goel, JJ.)

Civil Appeals Nos. 9176-77 of 2015

The Judgment of the Court was delivered by

Anil R. Dave, J.— Delay condoned. Leave granted.

32. In view of the fact that Civil Appeal No. 3732 of 2012 and batch involving similar facts have been allowed vide order dated 9-12-2014, we allow these appeals and set aside the judgment and order 2008 SCC OnLine All 1574 passed by the High Court and restore the order passed by the Reference Court. The appellants will be entitled to all statutory benefits. No costs.

33. It would be open to the respondents to approach this Court by way of an appropriate application, if they are aggrieved by this order.