Vali Adam Yusuf and Others vs Special Land Acquisition Officer and Another

Mohit S. Shah, J.—This appeal u/s 54 of the Land Acquisition Act, 1894 (hereinafter to be referred as ""the Act"") for enhancement of the

compensation amount is directed against the judgment and award dated 29.12.1997 passed by the learned Assistant Judge, Bharuch in Land

Acquisition Reference No. 613 of 1987.

The appellants'' land admeasuring 20,992 sq. mtrs. bearing City Survey No. 1241 in village Vejalpur (Bharuch City) came to be acquired for

construction of residential quarters for employees in the police department. The notification u/s 4 of the Act was published on 8.3.1984 and

Section 6 notification was issued on 24.8.1984. As against the appellants'' claim for compensation at the rate of Rs. 400/- per sq. mtr., the Land

Acquisition Officer made award dated 24.3.1987 in Land Acquisition Case No. 4 of 1984 offering compensation at the rate of Rs. 20/- per sq.

mtr. with solatium at the rate of 30% per annum. In the Reference made at the instance of the appellants, the learned Assistant Judge, Bharuch

determined the market value of the lands at the rate of Rs. 40/- per sq. mtr. with solatium at the rate of 30% per annum and additional increase at

the rate of 12% per annum for the period of 36 months from the date of publication of the notification till the date of the award and interest u/s 28

of the Act. In this appeal, the appellants have claimed compensation at the rate of Rs. 400/- per sq. mtr.

No reference is made in this judgment to the compensation awarded for trees, well, water pool, room, etc. as the amounts of compensation for

the said construction claimed and awarded are comparatively small and, therefore, did not merit further discussion and the said claims were not

seriously pressed at the hearing of this appeal.

Mr YN Ravani, learned Counsel for the appellants has challenged the judgment of the Reference Court, in so far as the same is against the

appellants, mainly on the following grounds:

(i) The appellant - claimants had examined Ismailbhai Ibrahimbhai as their witness at Exh. 32 for producing documentary evidence of sale instances

for comparable lands and also the award of the Reference Court in the matter of acquisition of another comparable land. Still, however, the

Reference Court has stated that the claimant had led evidence at Exh. 32 and not examined any witness. The Reference Court also erred in not

accepting Exhs. 38 and 39 which were sale instances of comparable lands in the same village Vejalpur on the ground that the claimants did not

examine the vendor or vendee of the said documents at Exhs. 38 and 39.

(ii) Section 51A was inserted in the Act by the Amendment Act of 1984 subsequently to facilitate the task of claimants by permitting them to

produce evidence of transactions recorded in the certified copy of registered sale deeds or copies of the indexes of documents as contained in the

register maintained under the Registration Act. Strong reliance is placed on the decision of the Apex court in Cement Corporation of India Ltd. v.

Purya AIR 2004 SC 4830 in support of the contention that such documents maintained under the Registration Act are relevant evidence which has

to be taken into account for determining the market value of the land under acquisition.

(iii) The Reference Court ought to have considered the document at Exh. 39 which was an index of the sale deed dated 3.1.1983 for sale of land

bearing City Survey No. 2621 for price at the rate of Rs. 220/- per sq. mtr.. Similarly, the Reference Court also ought to have taken into

consideration the index of the registered mortgage deed dated 8.11.1983, registered on 9.11.1983, under which the land in the same village

bearing Survey No. 11/1 Part was mortgaged in favour of the Gujarat State Corporation Housing Finance Society Ltd. and loan of Rs.

17,91,00,000/- was given by the said finance society at the rate of Rs. 68/- per sq. mtr.. Since the said land is at a distance of 1 kms. away from

the land under acquisition, the appellants ought to have awarded compensation by taking the market value of the lands in question at around Rs.

200/- per sq. mtr.

(iv) The Reference Court also erred in not determining the market value of the acquired lands with reference to the award dated 10.1.1989 passed

by the learned Assistant Judge, Bharuch in Land Acquisition Reference No. 53 of 1982 arising from acquisition of lands under notification dated

18.11.1978 whereby the market value of those lands was determined at the rate of Rs. 90/- per sq. mtr. for acquisition made in the year 1978.

Considering that Section 4 notification in the instant case was published on 8.3.1984, the Reference Court ought to have given at least 60%

increase and accordingly the market value of the acquired lands was required to be determined at least at Rs. 150/- per sq. mtr. The Reference

Court grossly erred in observing that Section 4 notification in that case was issued on 31.5.1982.

(v) The Reference Court also erred in proceeding on the basis that the acquired land is in the outskirt of village Vejalpur and that apart from the

bungalow of the DSP and the bungalows of other Government functionaries, there was no development in the area.

(vi) The Reference Court also erred in not awarding any interest on the amount of solatium. Reliance is placed on the decision of the Apex Court in

Sunder Vs. Union of India, in support of the contention that the claimants are entitled to interest on all the amounts awarded to the claimants u/s 23

of the Act.

On the other hand, Mr Umesh Trivedi, learned Additional Government Pleader for the Land Acquisition Officer and the District Superintendent

of Police has opposed the appeal and supported the judgment and award of the Reference Court.

We will first take up the contention raised by the learned Counsel for the appellants that the Reference Court erred in not considering the

indexes to the registered sale deeds/registered mortgage deed reflecting the market value of the comparable lands in 1983 which instances were

proximate in time to the acquisition of the land in the instant case in June, 1984. While the claimants examined their witness Ismailbhai Ibrahimbhai

at Exh. 32 who produced the certified true copies of the indexes of the documents, the Reference Court did not consider the same on the ground

that the appellants had not examined the vendor and vendee of the properties covered by those instances at Exhs. 38 and 39.

Section 51A was inserted in the Land Acquisition Act by the Amendment Act of 1984 and the same reads as under:

51A. Acceptance of certified copy as evidence. - In any proceeding under this Act, a certified copy of a document registered under the

Registration Act, 1908 (16 of 1908), including a copy given u/s 57 of the Act, may be accepted as evidence of the transaction recorded in such

document.

A Constitution Bench of the Apex Court has held in Cement Corporation of India Ltd. v. Purya AIR 2004 SC 4830 that the object of Section

51A is not only to permit the production of certified copy of the sale transactions but also to enable the party producing the certified copy of a sale

transaction to rely on the contents of the document without having to examine the vendee or the vendor of that document. The Apex Court also

held that a registered document in terms of Section 51A of the Act may carry therewith a presumption of genuineness. Such a presumption,

therefore, is rebuttable. Raising a presumption, therefore, does not amount to proof; it only shifts the burden of proof against whom the

presumption operates for disproving it. Only if the presumption is not rebutted by discharging the burden, the Court may act on the basis of such

presumption. Even when in terms of the Evidence Act, a provision has been made that the Court shall presume a fact, the same by itself would not

be irrebuttable or conclusive. The genuineness of a transaction can always fall for adjudication, if any, question is raised in this behalf. The Apex

Court further explained the scope of Section 51A in the following terms:

While it is true the contents of Exs. P1 and P2 should be looked into as evidence produced by a party the evaluation of such evidence should be

made taking into consideration other evidence if available on record like other sale transactions that may be produced, the comparative nature of

the location, suitability, marketability etc. to fix the market value of the land acquired.

Applying the above principles, we find considerable substance in the submission made by the learned Counsel for the appellant - claimants that

the Reference Court erred in not considering the documents at Exhs. 38 and 39 merely on the ground that the vendor and vendee were not

examined.

The learned Additional Government Pleader would, however, submit that the judgment of the Apex Court was with reference to the certified

copy of the sale deeds, but in the instant case what the claimants had produced was only certified copies of the indexes of the sale deed/mortgage

deed and, therefore, the principles laid down in the above judgment would not apply to the facts of the instant case.

We are, however, not persuaded to accept the above submission, because Section 51A does not merely deal with certified copies of

registered sale deeds or registered mortgage deeds but also covers copies given u/s 57 of the Registration Act. Sub-section (1) of Section 57 of

the Registration Act reads as under:

Registering officers to allow inspection of certain books and indexes, and to give certified copies of entries, - (1) Subject to the previous

payment of the fees payable in that behalf, the Books Nos. 1 and 2 and the Indexes relating to Book No. 1 shall be at all time open to inspection

by any person applying to inspect the same; and, subject to the provisions of Section 62, copies of entries in such books shall be given to all

persons applying for such copies.

Section 51 of the Registration Act provides for various books to be kept in the offices of the Registrar of Documents. Book 1 is ""Register of non-

testamentary documents relating to immovable property"". Similarly, there are other books with which we are not concerned in this case.

On a conjoint reading of Section 51A of the Land Acquisition Act with Sections 51 and 57(1) of the Registration Act, 1908, it is clear that the

benefit of Section 51A of the Land Acquisition Act is available not only in respect of the certified copies of the registered sale deeds/mortgage

deeds, but also in respect of indexes relating to such documents in Book 1 being maintained in the office of the Registrar of Documents. On a

perusal of the relevant entries at Exhs. 38 and 39, we find that the indexes do indicate the location of the property, the area in terms of sq. mtrs.,

the price and the date of execution of the document as well as the date of registration. We are, therefore, of the view that Exhs. 38 and 39 are

required to be looked into in light of the principles enunciated by the Constitution Bench of the Apex Court in Cement Corporation of India Ltd. v.

Purya AIR 2004 SC 4830. Accordingly, the transactions reflected in the indexes at Exhs. 38 and 39 have to be taken as genuine because the

presumption is rebuttable, but the burden of proof is against the Land Acquisition Officer against whom the presumption operates for disproving it.

Since the presumption was not rebutted in the instant case by the Land Acquisition Officer, the Court will have to act on the basis of such

presumption. Of course, the evaluation of the market price of the properties covered by those instances would have to be done taking into

consideration other evidence on record, comparative nature of the location, suitability and marketability, etc. while fixing the market value of the

acquired land.

As regards the document at Exh. 39, the same is index of the registered sale deed dated 3.1.1983 for sale of property in Survey No. 5 of

Bharuch city. Apart from the fact that the property appears to be land with construction, because municipal number is given to the property, it is a

property with very small area admeasuring only 45.34 sq. mtrs. which was sold for Rs. 9,999/-. Hence, the price at the rate of Rs. 220/- per sq.

mtr. for such non-agricultural land with construction could never be considered as comparable while determining the market value of the

appellants'' agricultural lands admeasuring almost 21,000 sq. mtrs. We, however, do find some substance in the appellants'' submission that

document at Exh. 38 (index to the registered mortgage deed dated 8.11.1983, registered on 9.11.1983), does indicate the market value of a

comparable land, because the land admeasuring 26,287 sq. mtrs. covered by that document was situated in village Vejalpur where the acquired

land is situate and by the said mortgage deed, the land is mortgaged by a Co-operative Housing Society in favour of the Gujarat State Co-

operative Housing Finance Society Ltd. for Rs. 17,91,000/- i.e. at the rate of Rs. 68/- per sq. mtr. This Court can take judicial notice of the fact

that the Gujarat State Co-operative Housing Finance Society Ltd. is a federal State level Co-operative Housing Finance Society which gives loans

for purchase of lands for the housing societies and for constructing houses and that the loan amounts are in the range of 70 to 75% of the market

value of the land. Hence, the mortgage of the land admeasuring 26,287 sq. mtrs. for loan amount at the rate of Rs. 68/- per sq. mtr. would indicate

that the market value of the said land in the same village Vejalpur was assessed by the Gujarat State Co-operative Housing Finance Society Ltd. at

Rs. 100/- per sq. mtr. approximately. The said mortgage deed was executed and registered on 8th and 9th November, 1983 respectively which is

in close proximity in time to acquisition of land u/s 4 notification issued in March, 1984 and published in June, 1984.

Considering that the aforesaid land was also a large track of 26,000 sq. mtrs. and was in the same village Vejalpur, we are of the view that the

document at Exh. 38 furnished a satisfactory piece of evidence for determining the market value of the appellants'' lands admeasuring

approximately 21,000 sq. mtrs. of land in the said village Vejalpur.

The learned Additional Government Pleader, however, submitted that the said land was of the ownership of a Co-operative Housing Society

Ltd. and the land was being mortgaged to the Gujarat State Co-operative Housing Finance Society Ltd. which would necessarily mean that the

said land was already converted into non-agricultural use, whereas the acquired land was agricultural land.

Secondly, it is submitted that the appellants'' land was irregular in shape and there was no other development near the appellants'' land except the

construction of the bungalow of the DSP and some other Government functionaries constructed long bank.

Strong reliance is also placed on the decision of the Apex Court to the effect that when the acquired land is non-developed agricultural land and

the other land is non-agricultural developed land, appropriate discounting has to be made to determine the market value of the acquired land.

In Atma Singh (died) through LRs. and Others Vs. State of Haryana and Another, the Apex Court has also referred to several decisions on

the question of deductions to be made on account of the fact that sale instances relied upon for ascertaining the market value related to sale of

small pieces of land.

While noticing various decisions laying down that the market value may be reduced by 33%, the Apex Court referred to the decision in Chimanlal

Hargovinddas Vs. Special Land Acquisition Officer, Poona and Another, indicating that the deduction can be made at an appropriate rate ranging

approximately between 20% to 50% to account for land required to be set apart for carving out lands and plotting out small plots. The discounting

will, to some extent, also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether the waiting period

during which the capital of the entrepreneur would be locked up, will be longer or shorter and the attendant hazards. The Apex Court also referred

to three other cases decided between 1995 and 2004 wherein the land was acquired for planned development of Delhi or for housing boards and

deduction of 33% was applied. The Apex Court then enunciated the following principles in Para 14 of the judgment:

The reasons given for the principle that price fetched for small plots cannot form safe basis for valuation of large tracts of land, according to

cases referred to above, are that substantial area is used for development of sites like laying out roads, drains, sewers, water and electricity lines

and other civic amenities. Expenses are also incurred in providing these basic amenities. That apart it takes considerable period in carving out the

roads making sewers and drains and waiting for the purchasers. Meanwhile the invested money is blocked up and the return on the investment

flows after a considerable period of time. In order to make up for the area of land which is used in providing civic amenities and the waiting period

during which the capital of the entrepreneur gets locked up a deduction from 20% onward, depending upon the facts of each case, is made.

In Para 15 of the judgment, the Apex Court further held that the purpose and the body for which the lands are acquired is also relevant: whether

the acquisition is for setting up a factory or for a public body like the Housing Board. ""A housing board does not run on business lines. Once plots

are carved out after acquisition of land and are sold to public, there is no scope for earning any money in future. An industry established on

acquired land, if run efficiently, earns money or makes profit every year. The return from the land acquired for the purpose of housing colony, or

offices, or institution cannot even remotely be compared with the land which has been acquired for the purpose of setting up a factory or industry.

Applying the aforesaid principles and considering the fact that the acquired lands are in irregular shape, the deduction of 40% should be made and,

therefore, the market value of the lands can reasonably be determined at Rs. 60/- per sq. mtr.

Mr Ravani would, however, submit that for acquisition of land covered by the award dated 10.1.1989 for acquisition of lands in Bharuch u/s 4

notification published in 1978, the Reference Court had determined the market value of the land at Rs. 90/- per sq. mtr. and, therefore, after the

period of five years, the market value of the appellants'' lands must at least be fixed at Rs. 140/- per sq. mtr.. It is submitted that the said judgment

and award at Exh. 34 is required to be relied upon for this purpose.

Having gone through the above judgment at Exh. 34, we find that the said judgment was rendered in case of acquisition of lands in Bharuch

city for lands which had super structures constructed thereon. The judgment was not in respect of acquisition of large tracts of lands like almost

21,000 sq. mtrs. of land acquired in the instant case. The Reference Court in that case had determined the market value of the lands acquired

therein with reference to the sale instances of lands near a shopping complex and cinema halls. Considering that they were non-agricultural lands in

the heart of the city and were lands with super structures, whereas the land acquired in the instant case is a large tract of 21,000 sq. mtrs. of non-

agricultural land in village Vejalpur which is in the outskirts of Bharuch city, the land acquired in the instant case cannot be considered as

comparable to the land covered by the award at Exh. 34.

In our view, therefore, the market value of the acquired land as on the date of the last publication of Section 4 notification in June, 1984 has to be

determined at Rs. 60/- per sq. mtr. and not at Rs. 140/- per sq. mtr. as contended on behalf of the appellants.

That takes us to the last contention about granting interest on solatium. In view of the law settled by the Hon''ble Supreme Court in Sunder Vs.

Union of India, we have no hesitation in holding that the appellants are entitled to interest u/s 28 of the Act on the amount of compensation under

Sub-section (1) of Section 23 and also on the amounts of increase under Sub-section (1A) and of solatium under Sub-section (2) of Section 23 of

the Act i.e. at the rate of 9% per annum for the first year from the date of acquisition of land and thereafter at the rate of 15% per annum till the

date of deposit/payment.

In view of the above discussion, the appeal is partly allowed. The respondents shall pay the appellants compensation for acquisition of lands

bearing City Survey No. 1241 of village Vejalpur (Bharuch city) admeasuring 20,992.55 sq. mtrs. at the rate of Rs. 60/- per sq. mtr. with

additional increase at the rate of 12% per annum for the period from the date of Section 4 notification till the date of the award i.e. 24.3.1987

(possession was taken after the award) and also with solatium at the rate of 30% per annum on the amount of compensation. The respondents

shall also pay the appellants interest at the rate of 9% per annum for a period of one year from the date of taking over possession of the lands and

thereafter at the rate of 15% per annum till the date of payment.

It is clarified that whatever amounts the appellants have received as per the award of the Land Acquisition Officer and as per the judgment of the

Reference Court shall be adjusted against the amounts payable under this judgment.

The differential amounts shall be deposited with the Reference Court within three months from the date of receipt of a certified copy of this

judgment.