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Wednesday, April 18, 2018

a cut at the rate of 10 % is very reasonable towards development of acquired land = Mohammad Yusuf and Others Etc. Etc. - Versus- State of Haryana and Others.

 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.3807-3825 OF 2018
(Arising out of Special Leave Petition (C) No. 35281-35299
OF 2016)
Mohammad Yusuf and Others Etc. Etc. .... Appellant(s)
Versus
State of Haryana and Others. .... Respondent(s)
WITH
CIVIL APPEAL No.3826 OF 2018
(Arising out of Special Leave Petition (C) No. 3585 OF 2017
AND
CIVIL APPEAL Nos. 3827-3859 OF 2018
(Arising out of Special Leave Petition (C) Nos. 4413-4445 OF 2017
J U D G M E N T
R.K.Agrawal,J
1) Leave granted.
2) The above appeals have been filed against the impugned
common judgment and order dated 03.06.2016 passed by
learned single Judge of the High Court of Punjab and Haryana
at Chandigarh in R.F.A. No. 6617 of 2012 (O&M) and other
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connected matters whereby the High Court partly allowed the
appeal filed by the appellants herein while dismissing the
cross appeals of the respondent-State.
3) Brief Facts:-
(a) The Government of Haryana, Revenue Department, vide
Notification under Section 4 of the Land Acquisition Act, 1894
(hereinafter referred to as ‘the LA Act’) dated 18.10.2005 has
notified the land of Village Ferozpur Namak, Tehsil Nuh,
District Mewat for the construction of Mini Secretariat at
District Mewat, admeasuring 372 karnals 2 marlas (i.e. 46
acres 4 karnals and 2 marlas). Consequently, the Government
of Haryana, vide Notification dated 25.05.2006, issued
declaration that the land is required for a public purpose.
(b) Notice under Section 9 of the LA Act was issued to all the
landholders and interested persons. The Land Acquisition
Collector (LAC), Nuh, Mewat, vide Award No. 1 dated
05.11.2007 assessed the market value of the acquired land at
the uniform rate of Rs 16 lakhs per acre along with 30%
solatium and 12% additional amount to the landholders.
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(c) Being aggrieved, the appellants herein filed a Reference
under Section 18 of the LA Act which was registered as LA
Case No. 394/01.12.10/19.09.11 before the Land Acquisition
Collector-cum-SDO(C) Nuh, Mewat. On 28.08.2012, the
Reference Court, enhanced the compensation to Rs. 72,00,000
lakhs per acre and applied the development cut at the rate of
55% and a further cut of 5% on account of waiting period,
totaling to 60%. Thus, the compensation was determined at
Rs. 28,80,000/- per acre along with the statutory benefits.
(d) Being not satisfied, the appellants herein preferred a
Regular First Appeal (RFA) being No. 6617 of 2012 alongwith
other set of appeals before the High Court. Respondent-State
also filed cross appeals before the High Court. Learned single
Judge of the High Court, vide common judgment and order
dated 03.06.2016, partly allowed the appeals of the
landholders by enhancing the compensation to Rs. 64,80,000
per acre along with other benefits while dismissing the cross
appeals filed by the respondent-State.
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(e) The landholders, being aggrieved by the judgment and
order dated 03.06.2016, has preferred these appeals by way of
special leave before this Court.
4) Heard Mr. R.S. Suri, learned senior counsel for the
appellants and Mr. P.S. Patwalia, learned senior counsel for
the respondent-State and perused the records.
Point(s) for consideration:-
5) The short point of consideration arises before this Court
is as to whether in the light of present facts and
circumstances of the case, any interference is sought for by
this Court?
Rival contentions:-
6) At the outset, learned senior counsel for the appellants
argued that the High court failed to consider that the land
acquired had great future potential for being developed as
residential as well as commercial area, hence, the
compensation ought to have been awarded accordingly.
Learned senior counsel further contended that the assessment
of the compensation has not been done considering the
following factors like potential value, location of land, future
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prospects, the development of land in question and the likely
injury to be sustained by the appellants herein for loss of their
future earnings etc. It was also contended that the High Court
has not considered the facts that the acquired land has
immense potential which is situated at a distance of half
kilometers from the Nuh City, and also situated within 30 kms
from the cyber city and could be directly approachable from
Indira Gandhi International Airport, New Delhi.
7) Further, the Reference Court allowed a cut of 55% on
account of development for raising infrastructural activities
and other amenities and a cut of 5% on account of waiting
period which was reduced by the High Court to 10% which is
also not in accordance with law vis-à-vis the fact that the
acquired land has all the infrastructural facilities on the date
of Notification.
8) Per contra, learned senior counsel for the
respondent-State submitted that the High Court has rightly
determined the compensation while condoning the potentiality
of the area and also after having regard to the sale deeds of
adjoining areas and a cut of 10% on the assessed value of the
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acquired land has been applied in accordance with law
vis-à-vis the fact that the acquired land has all the
infrastructural facilities on the date of Notification.
9) Learned senior counsel further submitted that the
compensation awarded is adequate in terms of principles
incorporated under Section 23 of the LA Act as also
interpreted by this Court in a catena of cases. Learned senior
counsel finally contended that the amount of compensation
has been awarded considering the factors like potential value
location of land, future prospects, the development of land in
question and the likely injury to be sustained by the
appellants, if any, and no interference is sought for by this
Court in the matter.
Discussion:-
10) The intention behind the enactment of the Land
Acquisition Act, 1894 was to acquire land for welfare purposes
and to compensate the owners adequately. It is well known
fact that the Right to Property is a Constitutional Right (earlier
it was a Fundamental Right until 1978) as provided under
Article 300 A of the Constitution of India. The term
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“compensation” was interpreted by this Court in a number of
cases that it is to be “a just equivalent of what the owner has
been deprived of.” Hence, the acquisition must pass the test of
compensation being reasonable, just and fair. The term justice
as enshrined in the preamble includes justice in economic
terms and the term economic justice in itself mandatorily
requires compensation to be adequate.
11) In a catena of cases, this Court has held that
compensation should be adequate and there must be no
injustice with the land owners since they stand deprived from
their very vital right i.e., Right to Property. At the same time, it
is also to be kept in mind that no hypothetical view shall be
taken as it may be harmful to the public exchequer in case of
acquisition for public purposes. Hence, courts must maintain
balance between both the parties. In the cases of land
acquisitions, generally courts confronted with the short but
important question that what ought to be the ideal market
value for the acquired land. This Court, in Major General
Kapil Mehra and Ors. vs. Union of India & Anr. (2015) 2
SCC 262 while dealing with the matter held as under:-
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“10. Market Value: First question that emerges is what would
be the reasonable market value which the acquired lands are
capable of fetching. While fixing the market value of the
acquired land, the Land Acquisition Officer is required to
keep in mind the following factors:- (i) existing geographical
situation of the land; (ii) existing use of the land; (iii) already
available advantages, like proximity to National or State
Highway or road and/or developed area and (iv) market value
of other land situated in the same locality/village/area or
adjacent or very near to the acquired land.”
12) For the purpose of deciding compensation of land in case
of acquisition, Section 23 of the LA Act is the fundamental
section which says that some vital factors to be considered
while determining compensation. At this juncture, it is
pertinent to re-produce the said section herein below:
23. Matters to be considered in determining
compensation.-(1) In determining the amount of
compensation to be awarded for land acquired under this
Act, this court shall take into considerationFirst,
the market value of the land at the date of the
publication of the notification under section 4,sub-section(1);
Secondly, the damage sustained by the person interested, by
reason of the taking of any standing crops or trees which
may be on the land at the time of the Collector’s taking
possession thereof;
Thirdly, the damage ( if any) sustained by the person
interested, at the time of the Collector’s taking possession of
the land, by reason of severing such land from his other
land;
Fourthly, the damage (if any) sustained by the person
interested, at the time of Collector’s taking possession of the
land ,by reason of the acquisition injuriously affecting his
other property, movable or immovable, in any other manner,
or his earnings;
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Fifthly , if , in consequence of the acquisition of the land by
the Collector, the person interested is compelled to change
his residence or place of business, the reasonable expenses
(if any) incidental to such change; and
Sixthly, the damage (if any) Bonafide resulting from
diminution of the profits of the land between the time of the
publication of the declaration under section 6 and the time
of the Collector’s taking possession of the land.
13) On a plain reading of Section 23 of the LA Act, it is
evident that the compensation has to be calculated according
to the value of the land to the owner and the question to be
considered is whether the person from whom the land was
taken was to lose by having it taken from him. The probable
use to which the land might be put was necessarily an element
to be taken into consideration for calculating the
compensation of acquired land. The land owners get
compensation on the basis of the value of the land, in its
actual condition at the time of the publication of the
Notification under Section 4 of the LA Act.
14) In the instant case, the appellants contented and invited
our attention to the fact that the valuation of the acquired
land should be assessed on urban land criteria since land had
all basic amenities like water, sewer, electricity and telephone
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lines were already present on the date of Notification under
Section 4 of the LA Act. However for being an urban area,
there must be some other facilities like commercial activities,
population growth, education activities, paying capacity of
people, healthy public transport, infrastructure etc. It is also a
well established rule that in the cases of calculation of
compensation, there cannot be a straight jacket formula,
hence, each case has to be dealt in the light of circumstances
of each case. Common sense is the best and most reliable
guide.
15) It is a well settled law that when there are several
exemplars with reference to similar land, usually the highest
of the exemplars which is a bonafide transaction, will be
considered. In the present case, the Reference Court, in Para
20 held as under:-
“…..Here in this case, applying the said authority to the facts
and circumstances of this case, I am of the considered
opinion that exemplar sale deed Exhibit P1 hold the fields in
preference to the other sale deeds. Reason for exclusion of
sale deeds Exhibit P2 to P3 is that sale deed Exhibit P1 is of
the highest land 1 kanal 6 marlas and is of the highest
amount, which is very close to the date of notification
because vide sale deed Exhibit P1 dated 5.10.2005, land
measuring 1 kanal 6 Marlas, whose nature was “Narmot”,
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situated in village Ferozpur Namak, Tehsil Nuh, was sold for
a sale consideration of Rs. 11,70,000/- by one Mahmood son
of Inshe Khan in favour of Smt. Hanisha Khatoon wife of
Mohammad Iqbal of the same village. The value per acre of
the land, as per the said sale deed is calculated as Rs.
72,00,000/- per acre. The said sale deed was executed on
5.10.2005 whereas notification under Section 4 of the Act for
the acquired land was published on 18.10.2005 and thus,
this sale deed Exhibit P1 is proximate to the point of time
from the date of issuance of notification under Section 4 of
the Act. No iota of evidence could be led by the respondents
to rebut the veracity of this sale deed. There is nothing on
record to show that the sale deed is not Bonafide and a
genuine transaction. In fact despite availing number of
opportunities, the respondents failed to lead any evidence to
rebut the evidence led by the petitioners.”
16) On a perusal of the Map of the concerned area which is
produced on record by the appellants, we find that the
acquired land in the present case falls within the control area
of Nuh and newly constructed Nalhar Medical College is at a
distance of 3-4 kms from the acquired land. We also find that
the said acquired land is situated on Palwal Road from one
side and on Delhi Road on the other. However, it is a matter of
record that such acquired land is far away from D.C. office
and other offices. Also, Bus Stand as well as Nuh Town is
situated far away from the acquired land. Hence, acquired
land of Firozpur village in such terms cannot be said to be
situated very near to the urban area of Nuh Town. The
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appellants produced various sale deeds for the perusal of this
Court. The vital sale deed dated 05.10.2005, wherein land
admeasuring 1 kanal 6 Marlas, situated in village Ferozpur
Namak, Tehsil Nuh, was sold for a sale consideration of Rs.
11,70,000/- by one Mahmood s/o Inshe Khan in favour of
Smt. Hanisha Khatoon w/o Mohammad Iqbal of the same
village. If we calculate the value of per acre in terms of the
above sale deed then it stands at Rs 72 Lakhs per acre. It is
pertinent to mention here that the date of this sale deed is
05.10.2005 which is proximate to the date of Notification i.e.,
18.10.2005 under Section 4 of the LA Act. In the present
case, after having regard to the circumstances of the case and
perusal of the sale deeds of adjourning area, we are of the
considered view that the compensation granted at the rate of
Rs. 72 lacs per acre is as per the law and no injustice has
been occurred to the appellants herein.
17) Now coming to the point of development charges which
applied by the High court @10% on the assessed value of
acquired land. Appellants herein contended that the rate of
deduction as applied by the High Court was not required as
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the acquired land is situated in the area already developed and
have all the potential for development. It is a matter of record
that the Reference Court determined 60% (55% as
development charges and 5% for waiting period) in totality
towards development charges which later on in appeal reduced
by the High Court to 10%. Deductions may be made for a
variety of reasons, which may differ in different cases.
However, in the backdrop of judicial precedents on this issue,
it is well settled position that all deductions should not
cumulatively be exceeded the upper benchmark of 75% and at
the same time, it should be kept in mind that no hypothetical
view shall be taken in order to calculate the percentage of the
development charges.
18) In the present case, the appellants contended that the
acquired land has all basic facilities such as water, electricity,
sewer, telephone etc which respondent-State has not disputed.
These are, however, not enough to meet the purpose of
acquisition. To make such land suitable for the acquisition
purpose i.e. for the construction of Mini Secretariat at Nuh,
some further development is sine qua non. For calculating the
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percentage of development charges, various factors need to be
taken into consideration such as location of land, facilities
available in nearby area, size of the land, purpose of
acquisition etc. The present acquired land of Firozpur Namak
village which is located at some distance from the Nuh Town
needs to be developed in proper manner like construction of
better and wide roads etc., to make it suitable for the
acquisition purposes. The fact that facilities already available
such as sewer, electricity etc., seems to be taken into
consideration properly while reducing the development
charges by the High Court from 60% to 10%.
19) In the case at hand, after giving our thoughtful
consideration to the facts and circumstance noticed
hereinabove, we are of the considered view that a cut at the
rate of 10 % is very reasonable towards development of
acquired land as some further development would obviously
be required to make it fit for the purpose for which it was
acquired.
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20) In view of above discussion, we are not inclined to
interfere with the impugned decision of the High Court.
Accordingly, the appeals are hereby dismissed leaving parties
to bear their own cost.
………….………………………J.
 (R.K. AGRAWAL)
.…....……..………………………………J.
(S. ABDUL NAZEER)
NEW DELHI;
APRIL 16, 2018.
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