B.S. Verma, J.@mdashSince both the appeals have arisen out of the judgment and decree dated 4-10-2008 passed by the District Judge, Dehradun in Land Acquisition Reference No. 185 of 2005 Harish Chandra and Ors. v. Collector Dehradun and Anr. therefore, for the sake of convenience, both the appeals are being decided by this common order.
2. Both the appeals u/s 54 of the Land Acquisition Act (for short the Act) are directed against the judgment and decree dated 4-10-2008 passed by the District Judge, Dehradun, in Land Acquisition Reference No 185 of 2005 Harish Chandra and Ors. v. Collector Dehradun and Anr. whereby the learned Reference Court has awarded compensation of land under acquisition @ Rs. 3,000/- per sq.mt. and also awarded compensation towards cost of construction made thereon to the tune of Rs. 63,000/- and other amounts as detailed in the impugned order.
3. Land measuring 0.194 Hectare of village Majri Mafi, Pargana Parwadoon, Tehsil and District Dehradun was proposed to be acquired by the Marketing Division Bareilly of Indian Oil Corporation Limited for installation of petrol pump. Notification u/s 4(1) of the Act was published in the official Gazette on 8-1-2004 followed by notification u/s 6(1) of the Act, which was published on 18-5-2004. Publication was also made in two Hindu newspapers regarding notifications to that effect. Consequently, land of Khasra No. 78Ka, area 0.010 Hectare, Khasra No. 78Kha area 0.080 Hectare and Khasra No. 81, area 0.064 Hectare (total 0.154 Hectare) belonging to claimant Harish Chandra, land measuring 0.20 Hectare of plot No. 78 Ka belong to Km. Poonam and land measuring 0.20 Hectare of plot No. 78Ka belonging to claimant Km. Sangeeta was acquired and possession thereof was taken on 6-12-2004. After completing other formalities, the Special Land Acquisition Officer (for short SLAO) passed Award on 15-3-2005 thereby compensation @ Rs. 54,99,862.50 per Hectare was awarded to the claimants with all other statutory benefits including 30% solatium, 12% additional amount and interest u/s 28 of the Act.
4. The claimants were not satisfied by the award made by the SLAO hence a reference u/s 18 of the Act was made by the Collector, Dehradun for adjudication of market value of the compensation. The reference was registered as L.A. Case No. 185 of 2005 Harish Chandra and Ors. v. Collector Dehradun and Anr. before the reference Court. The reference has been made mainly on the ground that the compensation awarded by the SLAO is inadequate, while the claimants have claimed that they are entitled to compensation @ 4000/- per sq.mt. It was also asserted that the land under acquisition is having residential potentiality and the land is situated on Dehradun-Haridwar national highway and a constructed house of the petitioners was standing on the land under acquisition.
5. In their objection, it has been asserted that the exemplar sale-deeds which were considered by the SLAO for determination of compensation cannot be the basis because the land under acquisition is not similarly situated and has not similar potentiality as that of the land under the exemplar sale deeds. It has also been asserted that the SLAO was bound to award compensation for the land under acquisition on the basis of highest exemplar executed within one year prior to the date of notification u/s 4. It has also been stated that the land under acquisition is situate in densely populated area and amidst market having high potentiality. The SLAO has not considered the circle rate fixed by the Collector for the period 1-11-2003 to 31-10-2005. It has also been asserted that the SLAO was not justified in ignoring the sale deed executed by Sri Vinay Kumar on 19-6-2003 in respect of 226.3 sq.mt. land of plot No. 48 by which land was sold @ Rs. 35,76,544/- per acre in favour of Vinod Khanna son of Sant Ram and other sale deeds as mentioned in the objection. The SLAO should have awarded the compensation at fair market price of the land under acquisition.
6. The reference was resisted by the Collector Dehradun as well as Indian Oil Corporation, who filed their separate written statements. Both the parties denied the allegations levelled in the objections and stated that the compensation of land under acquisition was awarded as per the prevailing rate of land in the area on the date of acquisition. They have disputed that the land was having residential potentiality, rather the land was bearing agricultural potentiality. The SLAO has rightly chosen the exemplar for fixing the amount of compensation. The compensation awarded by the SLAO is adequate, just and fair. The claim for compensation @ Rs. 4,000/0- per sq. mt is not at all justified. Indian Oil Corporation has asserted in its affidavit that the land under acquisition was acquired in public interest for allotting petrol pump to the dependents of martyrs of Kargil War and that the rate of compensation awarded by the SLAO is fair and proper. It was also asserted that the Indian Oil Corporation was not a necessary party to the reference.
7. On the pleadings of the parties, the following issues were framed by the learned Reference Court.
ISSUES
1. Whether the compensation awarded to the petitioners is inadequate?
2. Whether the claimants are entitled to compensation at enhanced rate? If so, to what extent?
3. Whether the opposite party No. 2 is not necessary party for the decision of the case and whether it has been impleaded unnecessarily?
8. Both the parties led evidence before the reference court. On behalf of the claimants, Sri Harish Chandra filed his affidavit. He was put to cross-examination from the other side. Petitioners also adduced documentary evidence. From the side of the opposite parties-Collector, D.W.1 Vinod Kumar Verma, Land Acquisition Amin in the office of the Collector has been examined. No documentary evidence was led by the opposite parties.
9. The learned reference court after hearing the parties and on perusal of the evidence on record has come to the conclusion that the acquiring body, i.e. Indian Oil Corporation is a necessary party and it has been rightly impleaded to the proceeding. The learned reference Court took Issue Nos. 1 and 2 together. The reference court after considering all the factors came to the conclusion that the circle rate fixed by the Collector in respect of the land situate on Dehradun-Haridwar motor road on the national high way between Rispna bridge and Harrawala, i.e. @ 4,000/- per sq.mt. would be fair market value of the land and out of this amount deduction @ 25% was allowed, thereby the compensation was awarded @ Rs. 3,000/- per sq.mt. for the land under acquisition. Accordingly, the judgment and decree dated 4-10-2008 has been passed by the learned reference Court.
10. Dissatisfied by the said judgment and decree, the appellant-Indian Oil Corporation has filed First Appeal No. 75 of 2008. The main ground of challenge to the judgment and award dated 4-10-2008 is that the market price of the land has been rightly assessed by the SLAO and no finding has been recorded to discard the finding of the SLAO and that the reference court has not considered the provision of the Act.
11. The claimants Harish Chandra and two others, whose land had been acquired for establishment of petrol pump, have also filed separate appeal bearing First Appeal No. 103 of 2009,for enhancement of compensation, mainly on the ground that the compensation has not been awarded by the SLAO as well as the District Judge on fair market value of the land under acquisition and that the learned reference court has ignored the fact that the land under acquisition is situate akin to the Dehradun Haridwar Highway.
12. I have heard learned Counsel for the parties and perused the material available on record.
13. Learned Counsel for the appellant in First Appeal No. 75 of 2008 has contended that the land under acquisition is recorded as agricultural land and the learned reference Court has considered the rate fixed by the Collector for the purposes of stamp duty for residential purposes. The area of the land in question is 1940 Sq.Mt.. Circle rate has been fixed by the Collector for residential purpose @ Rs. 4,000/- per sq.mt. for the area upto 50 Mts. from the road.
14. Learned Counsel for the appellant further submitted that as per decision of the Hon''ble Apex Court, circle rate cannot be equated with the market rates and on the basis of circle rates, compensation cannot be granted. The reference court has wrongly held that the land in question is having residential potentiality and normally deduction towards development charges would be 33% but the reference Court has deducted only 25% on that score.
15. It has also been submitted that the Collector while fixing the valuation of the land under acquisition has selected the sale deeds on the basis of transfers made during the last preceding three years from the date of notification u/s 4 of the Act, but the reference Court has ignored this fact and wrongly awarded compensation on the basis the circle rates fixed by the Collector. Learned Counsel further contended that the learned reference court has misinterpreted the decision of the Apex Court in the case of U.P. State Industrial Development Corporation Ltd. v. Rishabh Ispat Ltd. reported in 2007 (1) UC 577.
16. The learned Counsel in support of his contentions has placed reliance upon the following case-law:
2.
3.
4.
5.
6. Decision of the Apex Court in the Civil Appeal No. 8636 of 2002 Thakur Kuldeep Singh v. Union of India and Ors. decided on 8-3-2010.
17. Before entering further discussion in the matter, it is pertinent to mention here that in the case at hand, the claimants Harish Chandra and others have categorically stated in paragraph 8 of their objection that the land in the proximity of the land under acquisition was sold on 19-6-2003 by Vinay Kumar son of Pritam Singh of plot No. 48, measuring 226.3 sq.mt. at the rate of Rs. 35,76,544/- per acre. The claimants have also stated that Prabhu Dayal sold land measuring 301 Sq.Mt. for a consideration of Rs. 5,16,810/- at the rate of Rs. 69,53,755-81 and that Arjun sold land measuring 52.34 sq.mt. for Rs. 73,859/- to Smt. Nisha Devi on 10-9-2003 at the rate of Rs. 57,15,111.76 per acre. On the other hand, the Special Land Acquisition Officer Dehradun in his written statement paper No. 5B/2 has simply denied that the averment made in paragraph 8 of the objection to be false. The SLAO could not dare controvert that the sales referred to by the claimants for determination of fair market value of the land under acquisition are false or that the land under the sales referred to by the claimants is not in proximity or not having the similar potential value as that of the land under acquisition.
18. Besides, the claimant Harish Chandra filed his affidavit before the District Judge Dehradun in the reference and in paragraph No. 10, he has specifically stated that in Majri Mafi on Haridwar Road, near the land under acquisition, land having similar potential measuring 14.5 Sq.Mt. and measuring 15.39 sq.mt. was sold by Smt. Krishna to Smt. Meera Singh on 28-1-2004 at the rate of Rs. 4,000/-sq.mt. Deponent Harish Chandra was cross-examined on behalf of the appellant Indian Oil Corporation. The deponent has denied the suggestion that the land under the sale deed (paper No. 20C) is at a distance from the land under acquisition. The deponent Harish Chandra has however admitted that the land under the sale deed was having shop and vacant land both. Moreover, the claimant deponent was also cross-examined by the D.G.C. (Civil) on behalf of the Collector Dehradun but the statement of Harish Chandra made in paragraph 10 of his affidavit remained uncontroverted in the cross-examination wherein the claimants have stated that they be paid compensation of the land under acquisition @ Rs. 4,000/- per sq.mt. But the appellant Indian Oil Corporation in its written statement has not even disputed that the claimants are not entitled to compensation at the rate of Rs. 4,000/- per sq.mt.
19. It is further important to mention here that from the side of the appellant no oral or documentary evidence was led before the reference court to substantiate its stand that the market value of the land fixed by the SLAO is fair and adequate. Moreover, before the reference Court, DW 1 Vinod Kumar Verma, Land Acquisition Amin was examined. In his examination in chief this witness has stated that the land under acquisition is situate on Haridwar road and prior to its acquisition, sugarcane was grown and there were two kuchcha huts. There was no commercial area in the proximity of the land. He also stated that the compensation awarded by the Collector is adequate. In his cross-examination he has admitted that there is abadi on both the sides of the land under acquisition. He has also admitted that in the vicinity of the land there are some shops and other facilities including transport are available. It is thus obvious that neither the appellant Indian Oil Corporation nor the Collector Dehradun has adduced any oral evidence to substantiate that the compensation assessed for the land under acquisition is based on the fair market value prevailing within a period of three years preceding the date of notification u/s 4 of the Act. Judicial notice of the fact can be taken that none has come forward from the side of the Collector to state on oath that the exemplars relied on by the SLAO were depicting the fair market value of the land under acquisition.
20. So far as the pleadings and the evidence led by the parties before the reference court is concerned, the appellant Indian Oil Corporation has not even pleaded before the reference court that the claimants are not entitled to the amount of compensation as claimed by them.
21. Now, it has to be seen whether the compensation awarded by the reference court is based on the fair market value of the land under acquisition as envisaged by Section 23 of the Act or not?
From a perusal of the record, it is obvious that the reference Court has framed Issue No. 1 on the adequacy of the compensation. Before the reference court, the parties have filed their pleadings, which have already been referred to above. In oral evidence, the claimants have filed the affidavit of claimant Harish Chandra and have claimed that the compensation be awarded at the circle rate fixed by the Collector. It has also been pleaded that the land under acquisition possessed high potential value, it''s closeness to Abadi having facilities and amenities of water, electricity, telephone and transport. From a complete reading of the impugned judgment passed by the reference Court, it is crystal clear that the reference court has taken into consideration all the factors for determining the market value of the land in question. It is not disputed that the circle rate of the land under acquisition is Rs. 4000/- per sq.mt. Taking into considering all the relevant factors and evidence led by the parties, the reference court was of the view that the compensation ought to have been awarded by the SLAO at the circle rate fixed by the Collector, following the ratio of Division Bench Judgment of this Court in the case of Bhopendra Singh and Ors. v. Awas Vikas Parishad and Ors. 2005 (2) UD 295.
22. In paragraph No. 1 at page 9, of the impugned judgment dated 4-10-2008, the following observations were made by the reference court:
Now averting to the facts of the present case it is clear that as per the guidelines laid down by the Hon''ble Apex Court in
1. It situate in Abadi.
2. It has substantial frontage on Dehradun-Hardwar National High Way.
3. The acquired land had the commercial potentiality. As per the assertion made in the last para of the award, the land in question was selected for acquisition by the acquiring body Indian Oil Corporation when it was found suitable for establishing a petrol pump thereon. The land was so selected on account of its location and potentiality to use the said land for commercial purposes.
4. It was surrounded by a boundary wall with a hut and water tank constructed thereon for which a compensation of Rs. 63,000/- was awarded.
23. It would not be out of place to mention here that in Civil Appeal No. 8636 of 2002 Thakur Kuldeep Singh (D) Through L.R. and Ors. v. Union of India and Ors. along with Civil Appeal No. 8637 of 2002, decided on 8-3-2010, which has been relied upon by the appellant Indian Oil Corporation itself, the Apex Court has observed in paragraph No. 13 as under:
13) We accept that in view of the purpose for which the ''circle rates'' have been notified by the Ministry of Urban Affairs and Employment, market value of a plot cannot be determined solely on the basis of the circle rates. On the other hand, it cannot be ignored in toto. If other materials are available, Government rates can also be considered as corroborative evidence. The nature of the land plays an important role. Likewise, market conditions prevailing as on the date of notification are also relevant. Sale price in respect of small piece of land cannot be the basis for determination of market value of large stretch of land.
24. Considering the fact that the land under acquisition was acquired for commercial purpose of installation of petrol pump coupled with the fact that there were facilities of road, water, electricity, telephone as well as transport etc. and the fact that the land under acquisition is situate near Abadi and on the Dehradun-Haridwar National Highway, I am of the view that the market value of the land in question could easily fetch an amount of Rs. 4000/- per sq.mt. on the date of notification u/s 4(1) of the Act. Notice u/s 4(1) of the Act was issued on 8-1-2004, while the prevalent circle rates were effective from 1-11-2003 in the area. That being so, the award of compensation by the reference Court on the basis of circle rate i.e. @ Rs. 4,000/- per sq. mt. cannot be discarded. Not only this, the learned reference Court has made a deduction of 25% towards development charges, thereby the actual market rate of land under acquisition comes to Rs. 3,000/- to be payable to the claimants.
25. In paragraph 7 of the case Krishi Utpadan Mandi Samiti Sahaswan (supra), the Apex Court has made a reference of the case Jawajee Nagnatham (supra) and has held as under:
It has been held by this Court in the case of Jawajee Nagnatham v. Revenue Divisional Officer that market value u/s 23 of the Land Acquisition Act, 1894 cannot be fixed on the basis of a basic valuation register maintained by the registering authority for collection of stamp duty. Therefore, the reliance by the Reference Court on the values of land fixed by the District Magistrate for stamp duty purposes is clearly erroneous. For the purposes of the Land Acquisition Act the market value must be determined on the basis of sale deeds of comparable lands. In this case the Land Acquisition Officer had taken note of one such sale deed where the price was Rs. 15.37 per sq.yard. The Reference Court also had before it the sale deed by which the respondent purchased a portion of the acquired land. As stated above, the sale deed was for Rs. 15.40 per sq. yard. Section 92 of the Evidence Act precludes a party from leading evidence contrary to the terms of a written document. It was, therefore, not open to the respondent to urge that, even though his sale deed showed a price of Rs. 15.40 per sq.yard the real market value was Rs. 120 per sq. yard. To permit a party to so urge would be to give a premium to dishonesty. Parties who undervalue their documents, for purposes of payment of stamp duty, cannot be allowed to then claim that their own documents do not reflect the correct market value. Therefore, as per sale instances of the comparable lands, the market value, on dates of sales, were in the region of Rs. 15.37 to Rs. 15.40 per sq. yard.
26. The ratio of the judgment cannot be disputed. In the case before the Apex Court in Krishi Utpadan Mandi Samiti (supra), the claimant-respondent filed his own sale deed in evidence by which land at the rate of Rs. 15.40 per sq. yard was purchased. The Apex Court held that it was not open for the respondent to lead evidence contrary to the terms of a written document.
27. In the case at hand, the claimants have placed reliance on the sale deeds made at the proximity of the land under acquisition in the revenue village Majri Mafi (Parwadoon) and have also tendered in evidence copy of a sale-deed as paper No. 20-C on the original record to show that the circle rate as fixed by the Collector in the proximity of the land under acquisition is Rs. 4,000/- per Sq.Mt. The claimants have also filed paper No. 19-C, which is list of circle rates fixed by the Collector (effective from 1-11-2003 to 31-10-2005). The circle rate fixed by the Collector vide paper No. 19-C has not been disputed from the side of the appellant Indian Oil Corporation. The property sold under the sale-deed (paper No. 20C) for consideration of Rs. 1,45,000/-included a shop standing over an area of 15.39 Sq. Mt. The Special Land Acquisition Officer had taken note in the award of as many as 73 sale deeds and out of them he has made a reference of six sale deeds whereby the rate of the land was within the range of Rs. 35,76,544-41 to 30,35,142-61 per acre. But surprisingly, he has chosen only one sale deed dated 30-7-2007 by which Dalip Singh son of Sher Singh sold land measuring 221.47 sq.mt. @ Rs. 22,25,763.86 per acre for determination of market value of the land under acquisition. Before the reference court no oral or documentary evidence has been led by the SLAO to indicate that the sale instance taken by him was representing the fair market value of the land. No effort was made to work out the average rate of land out of the alleged comparable sale deeds as referred to by the SLAO in his award. The witness D.W. 1 Vinod Kumar Verma produced by the SLAO, though he could not be the best witness on the point, has not even deposed a single word that the sale instance relied upon by SLAO was representative of the prevailing market value of the land in the proximity of the land under acquisition. On the other hand, there is definite evidence of the claimant Harish Chandra that the land under acquisition has residential/commercial potentiality. As detailed above, the pleadings taken and the evidence led by the claimants before the reference Court were not controverted from the side of the appellant Indian Oil Corporation. The said case-law is of no avail to the appellant Indian Oil Corporation.
28. In the case of Viluben Jhalejar Contractor (Dead) by LRs. v. State of Gujarat (supra), the Apex Court has held in paragraph 20 that 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-�-vis the land under acquisition by placing the two in juxtaposition. The positive factors are smallness of size, proximity to a road, frontage on a road, nearness to developed area, regular shape, level vis-�-vis land under acquisition, special value for an owner of an adjoining property to whom it may have some very special advantage.
29. The ratio of this case law cannot be disputed. In the case at hand, besides other positive factors, the land under acquisition is small in size. In facts and circumstances of the present case, it does not help the appellant Indian Oil Corporation, rather it helps to the case of claimants.
30. In the case of Periyar and Pareekanni Rubbers Ltd. (supra) the Apex Court has inter alia held in paragraph 18 of the judgment that "what is fair and reasonable market value is always a question of fact depending on the nature of the evidence, circumstances and probabilities in each case. The guiding star would be the conduct of a hypothetical willing vendor would be willing to buy as a prudent main in normal market conditions as on the date of the notification u/s 4(1) but not an anxious buyer dealing at arm''s length nor fa�ade of sale or fictitious sales brought about in quick succession or otherwise to inflate the market value."
31. The ratio of the judgment cannot be disputed. In the case at hand, the appellant Indian Oil Corporation has not tendered any evidence to controvert the claim of the claimants on the point of market value of the land under acquisition. Moreover, having considered all other relevant factors and evidence brought on record, the market value of the land under acquisition has been determined on the basis of prevalent circle rate, therefore, case law, referred to above, does not help the appellant.
32. A Division Bench of this Court in the case of Bhopendra Singh and Ors. v. Awas Vikas Parishad and Ors. 2005 (2) U.D. 295 while dealing with the provisions of Section 23 of the Act, has observed in paragraph Nos. 12 and 13 as under:
12. The market value determined for the circle, is the minimum statutory market value, in accordance with the statutory market value, in accordance with the statutory rules framed under the Stamp Act, as amended by the U.P. Act, on the basis of which, stamp duty is paid as per schedule appended to Section 3 and sale deed is to be entertained only after the payment of the stamp duty paid on the said minimum market value and if in the opinion of the Registering Authority the value of the property is more than the minimum value determined as per the rules, he may refer the matter to the Authority who may further proceed to require the vendee to pay more stamp duty. And if not paid they may impound the sale deed. Thus the basis of exercise of power, is the minimum market value determined according to rule. If for the augmentation of the revenue, government fixes the market value of the property in a circle why that not be taken as minimum market value of the property for the purpose of Land Acquisition Act. The procedure of determination of market value provided u/s 23 of Land Acquisition Act is paramateria to the rules framed under the Stamp Act. Therefore, we hold that while avoiding compensation for land acquired under the Land Acquisition Act, the compensation cannot be paid at a lesser rate than that of market value determined for the purpose of payment of stamp duty under the Stamp Act.
13. This Court in First Appeal No. 175 of 2001 (Old No. 504 of 1990), M/s Singh & Company versus Collector, Nainital, decided on 8th July, 2005 held that the circle rates are merely guide lines relying on the case of Krishi Utpadan Mandi Samiti Sahaswan (supra). In case of Ramesh Chand Bansal (Supra) as well as State of Punjab (Supra), Jawaje Nagnatham (supra) and Krishi Utpadan Mandi Samiti Sahaswan (supra) the Court has dealt the guide lines as to be the parameters to determine either preparation or circulation, alteration or enhancement is an indicative price for registration of an instrument. In the aforesaid judgements the price were fixed under the guide lines whereas the rules read with Section 47A as applicable in U.P. itself regulates the very basis for the registration of an instrument presented for registration, which provides to determine the true value as per the rules framed under the Act by the State Government u/s 75 of Stamp Act. It is because of this reason that when the registering authority finds the stamp paid on an instrument has to compare the value under Rules framed under the Stamp Act. Since the rules itself govern the exercise of powers for registration u/s 47A, empowering the power of refusal to register a document presented for registration u/s 52 of Registration Act renders the rules framed by State of U.P. u/s 75 of Stamp Act as to be mandatory, in the absence of rules the purpose of Section 47A itself is defeated and is rendered a honest provision, thus these rules framed under the Stamp Act are mandatory. This could be visualized on a comparative reading of Section 47A as applicable in different States, to which the aforesaid judgements pertain, the rules have not played the pivotal role for the exercise of powers u/s 47A.
33. In view of the discussion made hereinabove as well as in view of the Division Bench judgment of this Court, referred to above, I, therefore, hold that the market value of the land under acquisition determined on the basis of circle rate fixed by the Collector @ Rs. 4,000/- per sq.mt. is fair, just and reasonable, to which the claimants are entitled. I also hold that the reference court has rightly held that the claimants are entitled to compensation at the circle rate fixed by the Collector. The question is answered accordingly.
34. Now coming to First Appeal No. 103 of 2009 Harish Chandra v. State of Uttarakhand and Ors. wherein challenge is to finding of the reference court regarding determination of market value of the land by the reference court, it would suffice to mention that the appellants Harish Chandra and others have preferred an objection u/s 18 of the Act for award of market value of the land under acquisition at the rate of Rs. 4000/- per sq. mt. In the affidavit the claimant Harish Chandra himself demanded the circle rate fixed by the Collector. The learned reference court has ultimately determined the compensation of the land under acquisition on the basis of circle rate, i.e. Rs. 4000/- per sq.mt. following the Division Bench judgment of this Court in the case of Bhopendra Singh and others (supra). The copy of sale-deed (paper No. 20C) filed on behalf of the claimants before the reference court is only indicative of the fact that the circle rate in the proximity of the land under acquisition was Rs. 4000/- per sq. mt. Moreover, the claimant-appellants have not led any evidence worth the name either before the Reference Court or before this Court in appeal to substantiate that the claimants are entitled to enhanced compensation for the acquired land i.e. at the rate more than Rs. 4000/-per sq.mt., therefore, in the absence of any pleadings and evidence to that effect, it does not lie in the mouth of the claimants appellants in F.A. No. 103 of 2009 to dispute that the market rate determined by the reference Court is not adequate. Moreover, this Court while sitting over the matter in appeal has recorded its own finding that the market rate determined by the reference Court at the rate of Rs. 4,000/- per Sq.Mt. on the basis of prevailing circle rate is fair, just and reasonable.
35. Learned Counsel for the appellant Indian Oil Corporation has contended that the deduction at the rate of 25% made by the reference court is not proper, rather deduction ought to have been made between 33% to 53% as held by the Apex Court in the case Basavva (Smt.) and Ors. v. Special Land Acquisition Officer and Ors. (supra).
36. On the other hand, learned Counsel for the appellant-claimants in First Appeal No. 103 of 2009, Harish Chandra v. State of Uttarakhand and Ors. has vehemently contended that the learned reference Court has given no justification on the point of deduction towards development charges, therefore, no deduction should be made towards development charges. In support of his argument, learned Counsel for the claimants-appellants has placed reliance on the case of C.R. Nagaraja Shetty v. Special Land Acquisition Officer and Estate Officer and Anr. 2009 (3) SBR 413, wherein the Apex Court in paragraph No. 8 has observed that "We cannot ignore the fact that the land is acquired only for widening of the National Highway. There would, therefore, be no question of any such development or any costs therefore." It was further observed that "We again, even at the cost of repetition, reiterate that no evidence was shown before us in support of the plea of the proposed development. We, therefore, hold that the High Court has erred in directing the deduction on account of the developmental charges at the rate of Rs. 25/- per square feet out of the ordered compensation at the rate of Rs. 75/- per square feet."
37. The ratio of the judgment cannot be disputed. In the case at hand, the agricultural land was purchased for commercial purposes. The acquiring body was going to establish petrol pump over the acquired land, which naturally needed expenses towards certain facilities of sewer, drain, security, better electricity provisions. Therefore, it cannot be said that further developmental charges were not at all required to be incurred.
38. Learned Counsel for the claimant-appellants further argued that the developmental charges, if any, could be not more than 10% of the market value of the land. Learned Counsel has placed reliance upon the case of
39. In the case before the Apex Court, 10% deduction towards development charges was allowed because of the possibility that a part of the land might be used for residential colony for the staff working in the factory, but in the case at hand, the land under acquisition was not fully developed. Here the land was having potential values but the same was yet to be developed. There is difference between a developed area and an area having potential value. Therefore, deduction of 25% from the market value of the land was fully justified. I am supported in my view by the Apex Court judgment, rendered by a three Judge Bench of the Supreme Court, in the case of
16. Shri Gupta has submitted that when the Reference Court had not made any deduction in the compensation amount on account of internal development, there was no justification for the High Court to allow 20 per cent deduction on that account. According to the learned Counsel the land is situate in a developed area where electricity supply, road and sewer lines were already in existence and as such there was no occasion for any further deduction from the market value of the land. Normally, the principle is that when a large area is acquired and the area is not fully developed a deduction of about 33 per cent from the market value is made. This view has been taken in Vijay Kumar Moti Lal v. State of Maharashtra, Sahib Singh Kalha v. Amritsar Improvement Trust and Special Tehsildar, Land Acquisition v. A. Mangala Gowri. The evidence on record indicates that the acquired land is situate in a developed area and approach road to the land and also power lines are available. However, in construction of multi-storeyed residential flats a considerable portion of the land has to be left out for internal roads, sewer line, open space, etc. In such circumstances the High Court was justified in directing deduction of 20 per cent from the market value of the land.
40. Admittedly, in the case at hand, the land under acquisition is agricultural land having potential value. The land is not fully developed, though it possessed facilities of water, electric supply, transport etc. and the land is close to Abadi. The land has been acquired for installation of a petrol pump and it is but natural that for the commercial purposes, the acquiring body must have to incur expenses so as to make the land fully developed and suitable for installation of petrol pump as well as for providing the other facilities like drain, sewers etc. In the facts and circumstances of the present case, the deduction of 25% from the market value of the land, as directed by the reference Court, is justified in view of the pronouncement of the Apex Court, referred to above.
41. No other point was urged or argued before me in these appeals.
42. In view of the discussions and the reasons aforesaid, both the appeals (First Appeal No. 75 of 2008 and First Appeal No. 103 of 2009) have no force and they are liable to be dismissed. The judgment and award passed by the reference Court is liable to be upheld.
43. Both the appeals are hereby dismissed. The impugned judgment and award dated 4-10-2008 passed by the District Judge, Dehradun is upheld. In the circumstances of the case, there shall be no order as to costs.
