Union of India Vs. Qabool Singh and ors. - Court Judgment

S. Rangarajan, J.

(1) The Union of India is aggrieved with the order dated 9-4-1963 of the Additional District Judge, Delhi enhancing the amount of compensation awarded by the Landi Acquisition Collector; the claimants tiave filed a Memorandum of Cross-objections praying for further enhancement of compensation.

(2) The Land Acquisition Collector had awarded compensation at a flat rate of Rs. 5,600.00 per bigha in respect of the entire area, namely, 40 bighas 16 bids was situate in Khampur; the notification under section 4 of the Land Acquisition Act was issued on 4-1-1956. The acquisition was made for enabling construction of Delhi Transport Service Staff Quarters.

(3) On a reference made under section 18 of the Act the learned Additional District Judge fixed the compensation payable in respect of the lands abutting the Patel Nagarroad (which are described as Block 1) at Rs. 15,600.00 per bigba and those not abutting the road (Block II) at Rs. 10,600.00 per bigha. The claim now made, in the Memorandum of Cross-objections is at the flat rate of Rs. 17.00 per sq. yard (I bigha being 1008 sq. yards) at the lowest; it is also claimed that the benefit of higher price should, in any case, be extended to some other lands as well.

(4) Land Acquisition Collector discussed at length, in his Award the materials on the basis of which he fixed the value at a flat rate of Rs. 5,600.00 per bigha. He not only considered the claims of the persons interested and the representation of the Department but also the chief data supplied by the Naib Tehsildar in charge of land acquisition and similar transactions during a period of five years preceding the date of notification under section 4 of the Act. To the various reasons given by the Land Acquisition Collector we shall revert later.

(5) Before discussing the details bearing on compensation it is necessary to advert to the legal contention advanced by Shri S. S. Chadha, Standing Counsel for the Central Government, that the claimants are in the position of plaintiffs and when there is a considered and reasoned award passed by the Land Acquisition Collector fixing compensation on the basis of evidence and representations of the claimants as well as of the Government, the onus is upon the claimants to show that the compensation awarded was not adequate.

(6) Decision of the Calcutta High Court in Harish Chander Neogy v. The Secretary of State for India in Council (Vol. Xi Calcutta Weekly Notes 875) 0 has been referred to in a number of subsequent decisions by various High Courts. The following observations therein have been relied up on by Shri Chadha:

'NOW,the ordinary rule of onus porbandi in these cases is that the claimant (who is a plaintiff) must prove that the valuation made by the Collector is insufficient. The theory is that the Collector in arriving at his award performs administrative and quasi-judicial functions. He may take evidence and come to a conclusion on such evidence. The award under section Ii of the Act becomes final, if it is not challenged within a definite time before the tribunal of the Special Judge, and that Judge, thereforee, fills the position to some extent of an Appellate Court. The burden of proof is thus ordinarily on the claimant in the Court of the Special Judge, but the burden must vary according to the nature of the enquiry made by the Collector. If no evidence has been taken by the Collector, and if no reasons have been given in his decisions to support his conclusion, the claimant has a very light burden to discharge. The mere ipse dixit of a Collector has very little weight, and is not prima fade evidence of the correctness of his award.'

(7) Without referring specifically to the above decision, a later Division Bench of the same High Court vide Naresh Chandra Bose v. State of West Bengal, : AIR1955Cal398 also held that the onus lay on the claimants to prove, by adducing evidence, that the market value as fixed by the Land Acquisition Collector was not the proper one; this onus, however, would be very slight if the Land Acquisition Collector fixed compensation without taking evidence but based his valuation on more conjecture or on the basis of materials which appeared to be irrelevant.

(8) A similar view was taken by a Division Bench of the Madras High Court in Marwadi Padmaji Miachand v. Deputy Collector of Adeni A.I.R. 1915 Mad 2720. In a recent case, Natesan, J., speaking for another Division Bench of the same High Court {vide State of Madras v. Mani Bharathi alias K. Balasllbramaniam, (1967) 80 LW 370 observed as follows:

'THECollector's award when it is not accepted by the claimant and when a reference is sought, is only an offer by the Collector. Of course, on a reference under S. 18, the award of the Collector will be prima fade evidence and the claimant will have to displace it. The burden of proof will be on the claimant to show that the compensation determined upon by the Collector is inadequate as his position is like that of a plaintiff, the Government being the opposite party.'

(9) The Madras view concerning onus was adopted by Walker, J. speaking for the Division Bench of the Lahore High Court in Pribhu Diyal v. Secretary of StateA.I.R. 1931 Lah 364.

(10) Broomfield, J., speaking for a Division' Bench of the Bombay High Court in Assif. Development Officer v. Tayaballi Allibhoy Bohori A.I.R. 1933 Bom 361 observed as follows:

'THEacquiring officer's award is of course strictly speaking not an award at all but an offer. It is based on inquiry and inspection and the officer responsible for it is usually a man of experience and local knowledge. He may take evidence, but he is not bound to do so, and his proceedings are administrative rather than judicial. But if his award is not accepted and the matter is taken into Court, the proceedings are thenceforward judicial in character. The party claiming enhanced compensation is more or less in the position of a plaintiff and must produce evidence to show that the award is inadequate. If he has no evidence the award must stand, and if he succeeds in showing prima fade that the award is inadequate, then Government must support the award by producing evidence'.

(11) A Division Bench of the Kerala High Court (vide State of Kerala v. Mariamma Abraham Air 1960 Ker 265 while conceding that the onus lay on the claimants thought that 'a clear statement in evidence even if only by the claimant concerned, that the true market value was what he has claimed, interested though it be, might in the circumstances, have sufficed to discharge the burden'. In that case the award did not disclose anything more than the Collector having accepted the valuation made by the officer; thereforee the burden on the claimant was negligible. On the facts it was found that none of the witness mentioned for the -claimant had made any such clear statement Krishna lyer, J., in a separate but concurring judgment, referred to the mechanical way in which the Collector had passed the award and how the State could not 'support itself on the rickety crutches of the Collector's award.'

(12) A Division Bench of the Andhra Pradesh High Court in Kompalli Nageswara Rao v. Special Deputy Collector : AIR1959AP52 following the view taken by the Bombay, Calcutta and Madras High Courts observed that 'the burden of proving that the amount of compensation awarded by the Collector is inadequate lies upon the claimant, but the weight of burden depends upon the thoroughness of the enquiry held 'by the Collector',

(13) A similar view was taken by a Division Bench of the Orissa High Court in Kasinath Mukherji v. Collector of Puri : AIR1962Ori21 which held that the burden primarily rests on the claimant to show that the Collector's estimate of the compensation to be awarded in land acquisition proceedings is wrong.

(14) A Division Bench of the Gujarat High Court held in Shrimati Kusumgauri Ramray Munshi v. The Special Land Acquisition Officer : AIR1963Guj92 that the party claiming enhanced compensation is 'more or less in the position of a plaintiff' and must produce evidence to show that the award is inadequate. Reliance was placed upon not only the aforesaid decision of the Bombay High Court in 1933 Air Bombay 361, but also of the Privy Council in the case of Secretary of State for Foreign Affairs v. Charles-worth Pilling and Co. (28 Ind App 121 (') where reference was made to the kind of reasons that are possible to give in support of a conclusion arrived at concerning the grant of compensation based on market value. The Judicial Committee of the Privy Council observed as follows:

'IT is quite true that in all valuations, judicial or other, there must be room for inferences and inclinations of opinion which, being more or less conjectural, are difficult to reduce to exact reasoning or to explain to others. Every one who had gone through the process is aware of his lack of demonstrative proof in his own mind, and knows that every expert witness called before him has had his own set of conjectures, of more or less weight according to his experience and personal sagacity. In such an inquiry as the present, relating to subjects abounding with uncertainties and on which there is little experience, there is more than ordinary room for such guesswork; and it would be every unfair to require an exact exposition of reasons for the conclusions arrived at'.

(15) The preponderance of judicial opinion thus seems to be that the onus lies on the claimant who is dissatisfied with the compensation awarded by the Land Acquisition Collector; the burden would of course be light if the Collector recorded no evidence or gave no reasons.

(16) The next question is whether reference could be made to the sale deeds which were taken into account by the Land Acquisition Collector in his award but which were not filed before the learned Judge seized of a reference under section 18 of the Act. A Division Bench of the Madras High Court held in P. Arunachala Aiyar v. The Collector of Tanjore (1926 (96) Indian Cases page 279) that not only the burden of proof lies on the claimant to show that the award is wrong, that the award of the land acquisition officer is admissible in evidence and can be looked at by the Judge in deciding a reference under section 18 of the Act. Referring to a previous decision of the same Court in Bommadevara Venkata Narasimha Naidu Bahadur v. Atmari Subbarayudu I.L.R. 36 Madras 395 where it was observed that 'proceedings under Part Iii of the Act are not by way of appeal', it was pointed out that that case related to 'proceedings under section 30 of the Act' and there was no question of there being any appeal. Reference was also made to section 12 of the Act which states that the award would be final and conclusive evidence, as between the Collector and the persons interested in the true value of the land subject of course to the result of a reference under Section 18 of the Act. Section 18(2) of the Act requires that the applicant should state the grounds on which he objects to the award.. Section 21 defines the scope of the enquiry to be made in an application made under section 18 and states that the scope shall be restricted to a consideration of the interests of the persons affected by the objection. Referring to these provisions, it was observed by a Division Bench of the Madras High Court in P. Arunachala Aiyar's (') case as follows:

'THUSit appears that what the District Court has to consider is the objection raised by a claimant to the award, and the claimant is bound to state the grounds for such objection. In this respect the procedure is similar to an appeal in a suit where the appellant has to state in his memorandum of appeal the grounds on which he objects to the lower Court's judgment. The Privy Council decision in Ezra v. Secretary of State for India Sar.can have no bearing on the present case. In that, their Lordships were dealing with a suit and not with proceedings under the Land Acquisition Act. If the District Judge's judgment is looked at in that light, it appears that he has dealt with the evidence put forward by the claimant in support of the objections, namely, the sale deeds which had already been inspected by the acquisition officer. The acquisition officer has given reasons for not accepting the sale-deeds as conclusive, chiefly on the ground that there are other sale deeds which give a fairer estimate of the market-value of similar lands. That being so, the award of the acquisition officer has to be considered and in that he has given very good reasons for coming to his conclusions and nothing put forward by the claimants in appeal destroys the validity of his arguments'.

(17) Shri H. S. Tyagi, learned counsel for the claimants, relied upon the observation of a Division Bench of the Rangoon High Court in C. R. M. A. v. Special Collector (1930 Air Rangoon 346) to the effect that 'evidence before the Collector cannot be considered as evidence before the Court except with the consent of parties'. With respect, these observations appear to be only of a general nature; the above provisions of the Land Acquisition Act, which bear on this question, were not ev referred to.

(18) Shri Tyagi contends that since under section Ii of the Act the Collector has to make his award in respect of three matters namely, the true area of the land, the compensation payable and the apportionment of the said compensation, all that the claimant need do is dispute the amount of compensation determined by the Collector and that he is not obliged to traverse the reasons or grounds on which the amount of compensation was fixed by the Collector. We do not agree. We are in respectful agreement with the view expressed by a Division Bench of Madras High Court in P. Arunachala Aiyar's case that the claimant is bound to state the grounds in support of his objection to the award and that the procedure in this respect is similar to an appeal where the appellant has to state the grounds on which he objects to the judgment of the lower court.

(19) Reverting to the award passed by the Land Acquisition Collector it is seen that the Collector had referred to a number of sales and. also the area-wise average disposal of land during the five years preceding the date of the notification under section 4 of the Act as well as other land acquisition awards.

(20) The Collector rightly discarded the annual rental value because the lands which were formerly agricultural were acquired for the purpose of putting up constructions, as fit for building, The Land Acquisition Collector conceded that the land under acquisition had potential value as building site because of its situation, near the road No. 34, leading from Patel Nagar to Najafgarh road, and adjoining the built area.

(21) The Collector found that the price of land depended on the frontage it had abutting the road, lands in the interior not being so valuable. The learned Additional District Judge has quoted from the award passed by the Collector (paragraph 5 of the judgment under appeal) and has explained how the Land Acquisition Collector came to adopt a flat rate of Rs. 5,600.00 per bigha. The learned Additional District Judge, however, could not agree with this approach because according to him the 'fronlage fetched decent and even fancy price'. He was, thereforee, not inclined to adopt a flat rate of Rs. 5.600.00 per bigha, but proceeded to divide the lands under acquisition into two Blocks, i.e. Block I comprising the land abutting Patel Nagar Road and Block Ii consisting of the remaining land behind the first Block. Even here the claimants want that some more lands ought to be included in Block I, which contention we shall consider presently. The distinction between lands (in the front) abutting the road and those in the rear is made on the footing that the owner of the property will make the best possible use of it and would be able to realise a higher price for those abutting the road. which may also have an impact on those in the interior if he is also able to provide access for those plots, as it usually happens when the same person is the owner of a large chunk of property abutting a road where he will be able to provide such access. When determining the value of the frontage land the depth is of supreme importance, suitable depth, however depending upon the locality nature of the building to be put up etc. The Lahore High Court in Air 1931 Lah 364 referred to earlier, pointed out that while differentiation can be made in respect of land having a frontage and in the back, no universal ratio can be fixed between value of the former and the latter, as each case will turn out on its own merit. The person claiming more compensation can seek to prove either what the property would fetch if sold in one block or what would be its present value if he plotted out the property and sold it into lots. There is no hard and fast rule that the back lands must be of half the value of the frontage value (vide Government of Bombay v. Karim Tar Mahomed I.L.R.33 Bombay 325. There is a detailed discussion of these aspects in Collector of Jabalpur v. A. Y. Jahagir Khan (Air 1971 Air M. P. 32 while considering the value of a larger extent of land which is expected to be parceled out into small residential plots allowance will have to be made for the space which will be taken up for the road and also for the cost of laying roads and of providing other amenities.

(22) In the absence of any frontage, propinquity and easy access to a high way are considered powerful elements in valuation especially when the land is in a populous locality (Secretary of Stale v. Bhupafi Nafh Deb, 1936 Air Calcutta 346). It was pointed out by Macleod, C.J., speaking for the Division Bench of the Bombay High Court in Bombay Improvement Trust v. Mervanji Manekji Mistry : AIR1926Bom420 that it was necessay to remember when dealing with cases of large areas of undeveloped land that it is the market value of the undeveloped land which has to be considered; it should not be forgotten that a purchaser of such land would ordinarily expect to make a large profit on the original outlay because in addition he will have further expenditure to make, and there will be the risk that it will be some time before he can dispose of the whole of the land.

(23) How large plots which are split up into small plots are to be valued was discussed by a Division Bench of the Gujarat High Court in Ambalal Mansukhram Joshi v. Additional Special Land Acquisition Officer (A.I.R. 1968 Gujarat 5). Referring to some previous decisions of the Bombay High Court it was observed by Sarela, J., speaking for the Division Bench, that the approach should be to reach a block rate by making due allowances out of the instances furnished concerning plot rates. R. P. Mookerjee, J., speaking for the Division Bench of the Calcutta High Court in Mohini Mohan Saha v. The Province of Bengal : AIR1951Cal246 referred to belting in dealing with shape etc. of land having a frontage and expressed the view that land up to a certain depth from the road side which is to be taken at a certain rate per unit of land and other portions of the same plot, placed at a more disadvantageous position, at a lesser rate. The depth of the belt will depend primarily on the effect of the presence of the road on the nature of the plots, the locality where they are situated, as also the character of the use of the land to which it is put. No uniform rule can be laid down for all cases. The principle of division of belts of plots is generally adopted only when the entire property cannot be utilised as being road-side land. Whether deduction is to be allowed or whether the value of the land is to be augmented by a certain percentage depends upon the nature of the contiguous plot from which land value is being determined.

(24) The learned Additional District Judge adopted the value of Rs. 15,600.00 per bigha for lands abutting the Patel Nagar road and Rs. 10,600.00 per bigha in respect of the land in the interior. Regarding the lands abutting the road the learned Additional District Judge relied upon two sale deeds (Exs. A/5 and A/6, dated 12-9-1955 and 13-8-1955 respectively). The land sold under Ex. A/5 was at the rate of Rs. 17.00 per sq. yd. and that under Ex. A/6 at the rate of Rs. 14.00 per sq. yd. The average price per sq. yd. of both the sale deeds works out to Rs. 15.50 per sq. yd. The learned Additional District Judge had adopted the rate of Rs. 15,600.00 per bigha in respect of the lands in Block 1. The complaint of Shri S. S. Chadha, counsel for the Union of India, is that Ex. A/5 comprised only 933.1/3 sq. yds. and Ex. A/6 333-1- sq. yd., roughly I bigha and 1/3 bigha, respectively. He urged that smaller plots fetch a higher price than the bigger ones for which there would not be any ready buyers. He relied upon the observations of the Supreme Court (Grover, J.) in Collector of Lakhimpur v. Bhuban Chandra Dutta (unreported Judgments 1971 Vol. 3, page 274) which are as follows:

'INour opinion the High Court overlooked the fact that the plots which were the subject matter of the sale deeds Exs. I to 4 were comparatively of small areas and it is well known that when a large area like the one which was the subject matter of acquisition has to be sold it cannot possibly fetch a price at the same rate at which small plots can be sold'.

(25) To the same effect are the observations of Shelat, J. in Radhakisan Laxminamyan v. The Collector of Akola (1968) I S.C.W.R.Vol.XI, 692 at page 696 (22):

'IT is well-known that small plots generally fetch a higher value than large plots, for the simple reason that there are some ready purchasers of small plots involving as they do lesser amount of investment'.

(26) To the extent to which the claimants did not dispute factual references made to the various sale deeds or their accuracy in the award of the Land Acquisition Collector we can find no impediment in the matter of adverting to them even in the absence of any further evidence let in before the learned Additional District. Judge in this regard by the Union of India. A Division Bench of this Court has held in Modi Sugar Mills Ltd. v. Union of India, New Delhi (Civil Regular First Appeal No. 28-D of 1962, decided on 14th February, 1972) that when secondary evidence let in by the production of certified copies, without any objection being taken to the production of the original sale deeds, in order to prove the market value of neighbouring property between persons who were not parties to the litigation, no objection could be taken at an appellate stage to impugn the proof either of the execution or the contents of those documents.

(27) We, thereforee, proceed to dispose of the appeal and cross objections not only on the basis of the actual evidence let in including copies of sale deeds which were tendered in evidence without any objection raised before the learned Additional District Judge but also on the basis of the facts stated in the award of the Land Acquisition Collector, to the extent they were not contraverted when the reference under section 18 of the Act was made to and heard by the learned Additional District Judge.

(28) We agree with the contention that it would not be proper to have an average of the market value based upon the sales of land over a period of five years particularly during a period when prices were rising. The proper criterion, thereforee, would be only sales of neighbouring lands of similar quality and situation fairly close in point of time and year to the date of the notification under section 4 of the Act.

(29) The learned Additional District Judge rightly made a distinction between the lands abutting Patel Nagar road and those that did not. We have been supplied a plan at the hearing by Shri Tyagi, which is conceded to be correct by Shri Chadha. indicating therein, by appropriately shading the same with different colours the unity of ownership of portions of the concerned lands. The portions shaded red therein include 37/1 (already included in Block I by the jearned Additional District Judee) and 128, 129/1 and 130/1: they are said to be jointly owned by Jhanjoo and Harkesh. The entire portion shaded red, which comprises the above fields has got an access to Road No. 34 through 37/1. As it is possible for these persons, by reason of the unity of ownership to provide access to this road. these lands have to be considered as having a more favorable situation than the other ones in the interior which do not have any access to the Road. Field Nos. 128, 129/1 and 130/1 are, thereforee, taken away from Block Ii and included in Block l(a). It seems to us, however, that the market value of Block l(a) lands will have to be slightly lower than those in Block I, which abut the Road No. 34. Field No. 780/39, abutting Road 34 and No. 785/41/2/1 shaded yellow, included in Block I by the learned Additional District Judge., will continue to remain in Block 1. The mere fact that the owner of field No. 780/39 (Qabul) is also the owner of field Nos. 127/1, 126/1 and 125 (all shaded green) cannot give him any advantage because Jhanjhoo and Harkesh have lands in between field Nos. 127/1 and 780/39. We are not impressed by the argument of Shri Tyagi that it would be possible for the concerned owners to come to some arrangement in the matter of giving access to the main road because there was no such compact put forward at the trial.

(30) Regarding the market rate of the acquired lands we feel that some allowance has to be made for sale deeds Exs. A.5 and A.6 not being of very large plots; some deductions have to be made for plots of lands in the matter of making them regular building sites. In this view we deduct Rs. 2.50 per sq. yard from Rs. 15.50 per sq. yard arrived at by the learned Additional District Judge in respect of lands in Block 1. We fix the market value of lands in Block I at Rs. 13.00 per sq. yard or Rs. 13,104.00 per bigha.

(31) In respect of lands in Block Ii the learned Additional District Judge had relied upon two sale deeds dated 7-5-1955 (Ex. A.2) and 3-6-1955 (Ex. A.3) in respect of parts of field No. 124 at the rate of Rs. 12.00 and Rs. 12.30 nP. respectively. The sale deeds were in respect of very small plots, namely, 250 sq. yards and 195 sq. yards, respectively; they could not be a proper basis to adopt in respect of much larger extents of land. The land bought under Ex. A.3 was the subject matter of land acquisition proceedings, when the value was enhanced from Rs. 5,600 per bigha to Rs. 2,500.00 for the acquired area of only 195 sq. yds.

(32) This would not be of much assistance to the claimants. The land bought under Ex. A.2 was further stated to have a road to its north (a situational advantage), though this is disputed for this reason even this advantage may be left out of account. Under Ex. A.4, 95-5/9 sq. yards in field No. 123 had been sold on 17-6-1955 at the rate of about Rs. 14.70P. per sq. yard. The Union of India relied upon the fact that earlier, on 12-5-1955, under the original of Ex. R.I the same land had been purchased only at the rate of Rs. 5.25 per sq. yard. The learned Additional District Judge rightly thought that the price mentioned in R.l did not represent the true market value of the land in that locality; Ex. R.I itself followed an earlier agreement to sell and the date of the said agreement is not known. Since the actual evidence produced by the claimants before the learned Additional District Judge does not seem to afford any precise criterion on the basis of which market value could be fixed, we hold that the market value in respect of lands in Block I has to bear the same proportion to those in Block II. In these circumstances it seems fair to adopt the same proportion (2 : 2) which the learned Additional District Judge adopted for the lands in Block I compared to those in Block II. We fix the value at Rs. 8.50 per sq. yard or Rs. 8,568.00 per bigha.

(33) For the lands included in Block I(a), which are not actually abutting the Road No. 34, since owing to the unity of ownership access to the road could be provided by the owners in order to use the land to the best possible advantage we value the same at Rs. 10.00 per sq. yard i.e. Rs. 10,080.00 per bigha. The amount of compensation awarded by the learned Additional District Judge is modified in the above-said manner.

(34) The learned Additional District Judge had asked the Land Acquisition Collector to work out the amount due to each claimant separately directing interest at 6% per annum from the date the Collector having entered into possession and when payment was made. It is sufficient to declare in this appeal the rates at which compensation is payable. The decree will be drafted by the Registry showing the amount payable to each claimant separately on the basis of the market value as fixed by us. The learned Additional District Judge had directed the parties to bear their own costs having regard to the fact that neither side has succeeded fully. We propose to make a similar order in this Court also. The parties shall bear their own costs. The Appeal is partially allowed to the above extent and the cross objections dismissed.