R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE20H DAY OF JANUARY2020PRESENT THE HONBLE MR. JUSTICE ALOK ARADHE AND THE HONBLE MR. JUSTICE RAVI V.HOSMANI M.F.A.No.563/2016 (LAC)BETWEEN :
THE SPECIAL LAND ACQUISITION OFFICER KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD KIADB ZONAL OFFICE MYSORE MYSORE. (By Sri.JAYKUMAR S. PATIL SR. COUNSEL FOR SRI.B.B.PATIL, ADV.) AND:
S. KUMARASWAMY KALAKUNDA VILLAGE NANJANGUD TALUK MYSORE DISTRICT.... APPELLANT
(By Sri.K.N.NITISH ADV. FOR SRI.K.V.NARASIMHAN, ADV.)
- - - THIS M.F.A. IS FILED UNDER SECTION541) OF THE LAND ACQUISITION ACT, AGAINST THE ORDER DATED47.2011 PASSED ON LAC NO.237/1998 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) & JMFC, NANJANGUD, ALLOWING THE CLAIM PETITION FOR COMPENSATION. 2 THIS M.F.A. COMING ON FOR HEARING, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING: JUDGMENT This appeal under Section 54(1) of the Land Acquisition Act, 1894 (hereinafter referred to as the Act, for short) has been filed by the Special Land Acquisition Officer being aggrieved by the judgment dated 12.07.2011 passed by the Reference Court. In order to appreciate the appellants challenge to the impugned judgment, few facts need mention, which are stated infra:
2. The Karnataka Industrial Areas Development Board (hereinafter referred to as the Board for short) is a statutory body established under the Karnataka Industrial Areas Development Board Act, 1996 with an object of promoting the establishment and orderly development of industrial area. While invoking the powers under Sections 28(1) to 28(8) of the Act, the State Government acquires the land and hands over the 3 same to the Board for setting up Industrial estates. The lands situated in Bythanahalli Village, Mysore District was required for development of the industrial area. The provisions contained in Section 28(1) of the Act were invoked and a preliminary notification dated 25.10.1996 was issued. The aforesaid notification included land measuring 2 acres 8 guntas in Sy.No.421 of Tandavapura Village, which is subject matter of this appeal. A final notification was issued on 06.11.1996 and an award was passed on 29.04.1997. The Land Acquisition Officer determined the market value of the land at the rate of Rs.56,684/- per acre. Being aggrieved, the respondent sought a reference under Section 18 of the Act. The Reference Court vide judgment dated 04.07.2011 awarded a sum of Rs.26,55,086/- per acre as compensation.
3. Learned Senior counsel for the appellant submitted that respondent had placed reliance on Ex.P1 to Ex.P8, which are the sale deeds of sites, which are 4 not situate adjacent to subject land. It is further submitted that value of a residential site cannot be compared with the land acquired by respondent No.2 for industrial purposes in acres. It is also submitted that while determining the market value of the property acquired for industrial purposes appropriate deductions should have been made. It is further submitted that the reference court grossly erred in making Ex.P8 the basis for assessing the market value of the land in question. It ought to have been appreciated that Ex.P8 has been executed in respect of a site measuring 2100 Square feet for a consideration of Rs.1,28,000/- on 21.04.1997, whereas, the preliminary Notification was issued on 25.10.1996. Thus, the post Notification sale could not have been made the sole basis for enhancing the amount of compensation. It is also pointed out that the sale deed, Ex.P8 is not genuine as the sale consideration mentioned therein is abnormally high. In support of aforesaid submissions, reliance has been placed on 5 decision of Supreme Court in RAM SWAROOP AND OTHERS VS. STATE OF UTTAR PRADESH AND OTHERS, (2017) 2 SCC413 ATTAR SINGH AND ANOTHER VS. UNION OF INDIA AND ANOTHER, (2009) 9 SCC289 ADMINISTRATOR GENERAL WEST BENGAL VS. COLLECTOR, VARANASI, AIR1988SC943 LAL CHAND VS. UNION OF INDIA AND ANOTHER, (2009) 15 SCC769 UNION OF INDIA AND ANOTHER VS. BALWANT SINGH AND OTHERS, (2019) 9 SCC687 MADISHETTI BALA RAMUL VS. LAND ACQUISITION OFFICER, (2007) 9 SCC650and a judgment of division bench of Gulbarga court in TVS MOTOR COMPANY LTD. VS. NAGESH RAO AND ANOTHER DATED1903.2013 IN M.F.A.NO.6558/2011 and a judgment of this court in THE ASSISTANT COMMISSIONER AND LAND ACQUISITION OFFICER DISTRICT VS. DILIPKUMAR AND ORS., 2011(1) KCCR302 6 4. On the other hand, learned counsel for respondent has submitted that the Reference court has determined the market value of the property on the basis of the evidence adduced before it. It is further submitted that even assuming that deduction of 30% on account of market value of the land in question is made, then also the amount of compensation comes to Rs.18.05 Lakhs. It is further submitted that the land in question has been acquired for setting up of a industry and has potential for non-agricultural use. Learned counsel has also referred to Section 42 of the Indian Evidence Act, 1872 and has submitted that the judgment relied upon by learned Senior counsel for the appellant is not relevant and the judgment dated 19.03.2013 in M.F.A.No.6558/2011 and connected cases relied upon by learned counsel for the appellant cannot be looked into as the same was not tendered in evidence. Learned counsel for respondent has also 7 invited the attention of this Court to Ex.P19, by which the land was brought under Local Planning Authority and the market value of the land of the respondent cannot be determined with reference to judgment in M.F.A.No.6558/2011 and connected cases. It is also urged that no question with regard to genuineness of the sale deed Ex.P8 was put to the respondent in the cross-examination, therefore, issue with regard to its genuineness cannot be urged for the first time in this appeal. In support of aforesaid submissions, reliance has been placed on decision of the Supreme Court in CEMENT CORPORATION OF INDIA LTD. VS. PURYA AND OTHERS, (2004) 8 SCC270and ATMA SINGH AND OTHERS VS. STATE OF HARYANA AND ANOTHER, AIR2008SC709 5. We have considered the submissions made on both the sides and have perused the record. Before proceeding further, it is apposite to take note of well settled principles with regard to determination of market 8 value of the land. It is trite proposition that prices fixed for small plots cannot form safe basis for valuation of large tracts of land as two are not comparable properties. [SEE: COLLECTOR OF LAKHIMPUR VS. B.C.DUTTA, AIR1971SC2015 PADMA UPPAN VS. STATE OF PUNJAB, AIR1977SC580. However, the prices of small developed lands can be used for determining the large tracts of land provided it is shown that the large tract of land is ripe for development after applying necessary deductions. In BRIG. SAHIB SINGH KALHA VS. AMRITSAR IMPROVEMENT TRUST, AIR1982SC940 Supreme Court indicated that the extent of deduction on account of development can be to the extent of 53%, but prices fetched for small plots cannot directly be applied in case of large areas for the simple reason that former reflects the retail price and the latter the wholesale price. The aforesaid well settled legal principles have been referred to with approval in 'ADMINISTRATOR GENL. OF WEST9BENGAL VS. COLLECTOR VARANASI, AIR1988SC943 K.S.SHIVADEVAMMA V. ASST. COMMISSIONER AND LAND ACQUISITION OFFICER, (1996) 2 SCC62 ATMA SINGH VS. STATE OF HARYANA, (2008) 2 SCC568AND SHUBHARAM AND OTHERS VS,. STATE OF HARIYANA AND OTHERS, 2010 (1) SCC444 In MALLAPPA VS. SPECIAL LAND ACQUSITION OFFICER, AIR2019SC462 it has been held that in case the land in question has potentiality for non- agricultural use, the same should be taken into account with reference to sale deeds even in respect of small piece of land by making appropriate deductions. The Supreme Court has also recognized the principle that the courts can always apply reasonable amount of guess work to balance the equities to fix a just and fair market value in terms of parameters specified under Section 23 of the Act. [See: TRISHALA JAIN AND ANR. VS. STATE OF UTTARANCHAL AND ANR., (2011) 6 SCC1047 AND VITHAL RAO AND ANR. VS. SPECIAL LAND ACQUISITION OFFICER, (2017) 8 SCC558. It is equally well settled legal proposition that where several sale deeds are filed, the transaction representing the highest value should be preferred for determining the market value. [See: ANJALIK MOLU DESSAI VS. STATE OF GOA AND ANOTHER, (2010) 13 SCC710 MEHRAWAL KHEWAJI TRUST (REGD.) VS. STATE OF PUNJAB AND OTHERS, (2012) 5 SCC432.
6. The Supreme Court in LALCHAND VS. UNION OF INDIA, (2009) 15 SCC769while dealing with the issue of deduction towards development charges in respect of industrial layouts held that deduction to be made from the cost of an industrial plot may range only between 45% to 50%. In HARYANA STATE IDUSTRIAL DEVELOPMENT CORPORATION VS. UDAL AND OTHERS, 2013 (14) SCC506, the Supreme Court in the case of acquisition of land in 11 respect of industrial layout has made a deduction of 50% towards development cost.
7. We may now advert to the facts of the case in hand. Admittedly, the respondent has filed sale deeds Ex.P1 to Ex.P19. The preliminary notification was issued on 25.10.1996, whereas, the sale deeds Ex.P11 to Ex.P19 pertain to the year 2010-11 and therefore, the same have rightly been discarded by the Trial Court. The Trial Court has taken into account sale deeds Ex.P1 to Ex.P8. Since, the sale deed Ex.P8 represents the highest market value and has been executed on 21.04.1997, the reference court has formed the same as basis for determination of the market value without any deduction. The reference court has held that property measuring 2100 Square feet has been sold for a consideration of Rs.1,28,000/- and therefore, the market value of 1 acre comes to Rs.26,55,086/-. However, the Trial Court has neither examined the evidence available on record and has not recorded a 12 finding that the land in question has potentiality for non- agricultural use nor has made any deduction on account of development charges.
8. In his evidence, PW1 viz., S.Kumaraswamy has stated that his land is situated within the urban agglomeration and is surrounded by residential layouts and industrial area. It is also stated that the land in question is adjacent to National Highway No.212. It has also been stated that the land in question is situate 100 meters from main bus stand, college, high school, bank, sericulture department offices and commercial street/shops and 200 meters away from the railway station. However, in the cross-examination, the aforesaid witness had admitted that his land is dry land at the time of issuance of notification, the appellant was growing maze, toor and grains. It has also been admitted by him that in order to show that his land is situate adjacent to the lands covered under the sale 13 deeds viz., Ex.P1 to Ex.P8, he has not produced any document but has given the sketch.
9. Thus, from perusal of the evidence of the claimant, it is evident that the land of the claimant is an agricultural land yet it has potentiality for non- agricultural use. However, it is pertinent to mention here that claimant has not adduced any evidence to show that his land is similarly situate as the lands covered under the sale deeds Ex.P1 to Ex.P8, which are admittedly in respect of residential sites. The appellant had made Ex.P1 to Ex.P8 as basis for claiming compensation. Therefore, the burden was on him to prove the fact that his land is similarly situate as the lands covered under the sale deeds, Exs.P1 to P8. However, admittedly, the claimant has not adduced any document to show that his land is similarly situate as the lands covered under the sale deeds, Ex.P1 to P8. The claimant has failed to discharge the aforesaid burden. However, the aforesaid fact has not been 14 appreciated by the reference court and without making any deduction on the basis of a small piece of land measuring 2100 square feet, the compensation has been determined. From the perusal of the sketch, it is evident that the land of the claimant is situate away from the National Highway and is also not situate adjacent to the lands covered under sale deeds, Ex.P1 to P8. Therefore, we are unable to agree with the market value assessed by the Trial Court.
10. However, in the absence of any contemporaneous sale deeds, some element of guess work will have to be involved while assessing the market value in the instant case. The preliminary notification was issued on 25.10.1996. The sale deed, Ex.P8 in respect of 2100 square feet of land was executed on 21.04.1997 i.e., approximately after six months from the date of issuance of the preliminary notification. Ordinarily an amount of 10% has to be deducted annually in respect of post notification sales. 15 [See:RANJIT SINGH VS. UNION TERRIOTRY OF CHANDIGARH, 1992 (4) SCC659and LAND ACQUISITION OFFICER AND REVENUE DIVISIONAL OFFICER VS. RAMANJULU, 2005 (9) SCC594. Therefore, in the instant case, we deem it appropriate to deduct 5% from the market value. Therefore, the market value on the date of notification in respect of land covered under sale deed, Ex.P8 is quantified at [Rs.1,28,000-5%]. Rs.1,21,600/- per square feet. The land has been acquired for industrial layout and therefore, in view of law laid down by the Supreme Court in case of Haryana State Industrial Corporation supra, we deduct 50% of the amount on account of development charges as the Karnataka Industrial Areas Development Board has to develop the land and thereafter has to make allotments. Thus, the market value comes to Rs.60,800/- for 2100 square feet. We are fully conscious of the fact that the land covered under the sale deed, Ex.P8 is a residential site, 16 whereas, the land of the claimant is an agricultural land having potentiality for non-agricultural use and the same is included in urban agglomeration. However, in the absence of any evidence on record and in view of law laid down by Supreme Court, some element of guess work has to be involved in assessing the market value, which we have done in the instant case. Thus, the market value of the land in question comes to Rs.12,61,165/- per acre.
11. So far as reliance placed by learned Senior counsel for the appellant in case of TVS MOTORS COMPANY LTD., VS. NAGESH RAO, RENDERED IN MFA65582011 DATED1903.2013 in support of his submission is concerned, suffice it to say that only a photocopy of the judgment has been produced before us without any application. Therefore, the same cannot be taken into account as each case has to be decided on the basis of the evidence adduced by the parties before 17 the reference court as the proceeding before the reference court are original in nature. In view of preceding analysis, the judgment dated 12.07.2011 passed by the reference court is modified to the extent mentioned above. In the result, the appeal is disposed of. In view of disposal of the appeal, the pending applications do not survive for consideration and the same are disposed of. Sd/- JUDGE Sd/- JUDGE SS