# Bulandshahr Khurja Development Authority, Bulandshahr v. Smt. Amir Kuwar & Ors

- **Citation:** (2019) 2 ILRA 813
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-01
- **Case number:** First Appeal No. 264 of 2012
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bulandshahr-khurja-development-authority-bulandshahr-v-smt-amir-kuwar-ors-44753
- **Pages:** 40

## Headnote

A. Land Acquisition Act, 1894 - Market
Value - Determination of market value
has to be made as per market rate,
prevailing on the date of publication of
notification under section 4 (1) of Act,

## Text

_Characters 0–39,817 of 129,959. This is a partial read: ask again with offset=39817 for what follows._

2 All. Bulandshahr Khurja Development Authority, Bulandshahr Vs Smt. Amir Kuwar & Ors.
813
(Junior Division), Bulandshahar, in Original
Suit no. 231 of 2001, Jageshwar Dayal and
others Vs Rajjan Lal, and the judgment and
decree
dated
10.05.2005,
passed
by
Additional
District
Judge,
Anupshahar,
District Bulandshahar in Civil Appeal no. 2 of
2004 (Jageshwar Dayal and others Vs Rajjan
Lal), are illegal and unsustainable.

56. The judgment and decree dated
04.12.2003, passed by the learned Civil
Judge (Junior Division), Bulandshahar, in
Original Suit no. 231 of 2001, Jageshwar
Dayal and others Vs Rajjan Lal, and the
judgment and decree dated 10.05.2005,
passed by Additional District Judge,
Anupshahar, District Bulandshahar in Civil
Appeal no. 2 of 2004 (Jageshwar Dayal and
others Vs Rajjan Lal), are set aside.

57. The matter is remitted to the
learned trial court.

58. The suit proceedings commence
forthwith before the learned trial court
upon receipt of a certified copy of this
order. The learned trial court shall grant
one month and no more time to the
plaintiffs-appellants to amend the plaint
and make good the deficiency in the court
fee. The learned trial court shall decide
the suit within a period of six months
thereafter. The learned trial court shall
proceed on day to day basis, if necessary
to adhere to the stipulated time line. The
learned trial court shall not grant any
adjournment to the parties. The learned
trial court shall finally decide the suit, in
accordance with law and consistent with
the observations made in this judgment.

59. In case an appeal is filed against
the judgment & decree of the trial court,
the appellate court shall decide the appeal
within two months.

60. Second appeal is allowed to the
extent indicated above.
----------

(2019)10ILR A 813

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.07.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

First Appeal No. 264 of 2012
connected with
First Appeal No. 3 of 2016

Bulandshahr Khurja Development
Authority, Bulandshahr ...Appellant
Versus
Smt. Amir Kuwar & Ors. ...Respondents

Counsel for the Appellant:
Sri B. Dayal

Counsel for the Respondents:
Sri D.K. Mishra, Sri B.B. Paul, Sri B.K.
Solanki

A. Land Acquisition Act, 1894 - Market
Value - Determination of market value
has to be made as per market rate,
prevailing on the date of publication of
notification under section 4 (1) of Act,
1894. (Para 33)
B. Land Acquisition Act, 1894 - Market
Value vis-à-visCircle rates - For the
purposes of determining market value,
under Section 23 of Act, 1894 - circle
rate fixed by Collector for the purposes
of stamp duty, under Stamp Act, 1899 -
would not be a relevant material unless
such determination is under a statutory
obligation
and
after
following
the
prescribed procedure. (Para 36 & 38)
C. Land Acquisition Act, 1894 - Market
Value - 'comparable sales method of
814 INDIAN LAW REPORTS ALLAHABAD SERIES
valuation' - Exemplar sale deed - Sale
deeds, if any, executed in the close
proximity of the relevant date which is
genuine and shows a voluntary and open
transaction between the parties - Sale
must be a genuine transaction - sale
deed must have been executed at the
time, proximate to the date of issue of
notification
under
Section
4-
land
covered by the sale must be in the
vicinity of acquired land - land covered
by the sales must be similar to acquired
land - size of plot of the land covered by
the sales be comparable to the land
acquired - Where land subject matter of
exemplar sale deed is smaller or larger
suitable adjustment by applying plus and
minus
factors
and
also
appropriate
deduction can be made by the Court.

 (Para 39 & 67)
D. Land Acquisition Act, 1894 - Market
Value - Number of Exemplar Sale deed-
It is not the number of exemplars which
is important but it is the genuity,
authenticity and creditworthiness of the
documents - If the document is found
most
suitable
and
appropriate
for
determining compensation in respect of
acquired
land,
even
a
single
instance/exemplar cited by Land Owner
may be relied and it can be said that
Claimant-Land Owner has succeeded in
discharging his burden. (Para 48)
E. Land Acquisition Act, 1894 - Market
Value - Size of land & Deduction - Small
size plot attract a large number of
persons being within their reach - which
will not be possible in respect of large
block of land wherein incumbent will
have to incur extra liability in preparing
a lay out and carving out roads, etc - In
such matters, factors can be discounted
by making deduction by way of an
allowance at an appropriate rate ranging
between 20% to 75%, to account for
land, required to be set apart for carving
out road etc. and for plotting out small
plots. (Para 41)
F. Land Acquisition Act, 1894 - Market
Value - Potentiality - "Potentiality"
means,
capacity
or
possibility
for
changing or developing into state of
actuality - Potentiality of land should be
on the date of acquisition i.e. existing
potentiality - Further, potentiality has to
be directly relatable to capacity of
acquired land to produce agricultural
products, or its market value relatable to
method of compensation. If there exist
crops, trees or fruit bearing trees, the
same can be taken into consideration,
but extent of benefit cannot go to the
extent that fruits grown in agricultural
land would be converted into processed
food like jam or any other eatable
products. (Para 59 & 67)
G.
Land
Acquisition
Act,
1894
-
Deductions - Generally a deduction is
given taking into consideration the
expenses required for development of
the larger tract to make smaller plots
within that area in order to compare
with the small plots dealt with under the
sale transaction - Deduction can be made
where the land is acquired for residential
and commercial purpose with regard to
roads and civic amenities, expenses of
development of the sites by laying out
roads,
drains,
sewers,
water
and
electricity lines, and the interest on the
outlays for the period of deferment of
the realization of the price, the profits on
the venture etc. (Para 44 & 54)
H.
Land
Acquisition
Act,
1894
-
Deductions - Quantum of deduction
towards development is on account of
two components - "first component",
may conveniently be referred to as
deductions for keeping aside area/space
for
providing
developmental
infrastructure
- "second component"
may conveniently be referred to as
deductions
for
developmental
expenditure /expense under the head of
"development", the applied deduction
should not exceed 67 percent. That
should
be
treated
as
the
upper
benchmark. (Para 73)
 I. Land Acquisition Act, 1894 - No
Deduction case - Where the acquired
2 All. Bulandshahr Khurja Development Authority, Bulandshahr Vs Smt. Amir Kuwar & Ors.
815
land itself is fully developed and has all
essential amenities, before acquisition,
for the purpose for which it is acquired
requiring no additional expenditure for
its development, falls under the purview
of cases of `no deduction' - exemplar
lands have all the features comparable to
the proposed acquired land, including
that of size, is another category of cases
where principle of `no deduction' may be
applied. (Para 93)
J. Land Acquisition Act, 1894 - Belting
system - When a large extent of land
under acquisition comprises of lands of
several persons and some lands are
abutting the main road and some lands are
in the interior, the same would not have
the uniform rate of market value -
Reasonable
demarcation/classification
should be made before determination of
the compensation - i.e. where nature,
extent, size, surrounding and location of
acquired land greatly varies, Courts have
applied "belting system" for determination
of market rate of acquired land - It is
applied
in
appropriate
cases
when
different parcels of land with different
survey
numbers
belong
to
different
owners and having different locations are
acquired - Such chunk cannot be taken as
a compact block - In Belting System,
acquired land is usually divided in two or
three belts. (Para 88 & 94)
K. Land Acquisition Act, 1894 - Market
Value- Valuation of immovable property -
Factors - Factors such as the nature and
position of land to be acquired, purpose
for which the land can be used, its
potential value, locality, situation, size
and shape of the land, rise of depression
in the value of land in the locality
consequent
to
acquisition
etc.,
are
relevant factors to be considered - Other
factor - Existing geographical situation
of land, Existing use of land, Already
available advantages, like proximity to
National or State Highway or road and/
or developed area, Market value of other
land situated in the same locality/
village/ area or adjacent or very near the
acquired land. (Para 68 & 79)
L. Land Acquisition Act, 1894 - Fair Market
Value - Burden - Burden to establish as to
what is the reasonable and adequate
market value and that the offer made by
Collector is inadequate, is on the Land
Owners/ claimanats at whose instance
Reference has been made to District Judge
under Section 18 of Act, 1894 - If initial
burden in that behalf is discharged, the
burden would shift to State to justify the
compensation offered by SLAO. It is for
Claimants to ascertain as a matter of fact -
location, potential and quality of land for
establishing its fair market value. (Para 49
& 59)
M. Land Acquisition Act, 1894 - Section
18 (Reference) - Reference Court does
not sit in appeal over the Award of Land
Acquisition Officer - Material used by
Land Acquisition Officer is not open to be
used by Court suo motu unless such
material is produced by the parties and
proved independently before Reference
Court. (Para 33)
First Appeal dismissed (E-5)
Case relied upon: -

1.Chimanlal Hargovinddas Vs Special Land
Acquisition Officer (1988) 3 SCC 751
2.Jawajee Nagnatham Vs Revenue Divisional
Officer (1994) 4 SCC 595
3.Land Acquisition Officer Vs Jasti Rohini
(1995) 1 SCC 717.
4.U.P. Jal Nigam Vs M/s Kalra Properties (P)
Ltd. (1996) 3 SCC 124
5.Krishi Utpadan Mandi Samiti Vs Bipin Kumar
(2004) 2 SCC 283
6.Lal Chand Vs Union of India & anr. (2009)
15 SCC 769
7.Ramesh Chand Bansal Vs D.M./Collector
(1999) 5 SCC 62
8.R Sai Ram Bharathi Vs J Jayalalitha (2004) 2
SCC 9
816 INDIAN LAW REPORTS ALLAHABAD SERIES
9.Kausalya Devi Bogra & ors. Vs Land
Acquisition Officer, Aurangabad & anr. (1984)
2 SCC 324
10.Bhagwathula Samnna & ors. Vs Special
Tehsildar
&
Land
Acquisition
Officer,
Visakhapatnam Municipality (1991) 4 SCC 506
11.V.M. Salgoacar & brother Ltd. Vs Union of
India (1995) 2 S.C.C 302
12.Shakuntalabai (Smt.) & anr. Vs St. of Mah.
(1996) 2 S.C.C 152
13.Gafar
Vs
Moradabad
Development
Authority (2007) 7 SCC 614
14.Basavva (Smt.) & ors. Vs Special Land
Acquisition Officer & anr. (1996) 9 SCC 640
15.D. Vasundara Devi Vs Revenue Divisional
Officer (1995) 5 SCC 426
16.Land Acquisition Officer, Kammarapally
Village Vs Nookala Rajamallu & ors. AIR 2004
SC 1031
17.Udho Dass Vs St. of Har. & ors. (2010) 12 SCC 51
18.Anjani Molu Desai Vs St. of Goa & anr.
(2010) 13 SCC 710
19.Nelson Fernandes & anr. Vs Special Land
Acquisition Officer, South Goa & ors. AIR 2007
SC 1414
20.Special
Land
Acquisition
Office
Vs
Karigowdo & ors. 2010 (5) SCC 708
21.Mohinder Singh & ors. Vs St. of Har. (2014)
8 SCC 897
22.Union of India Vs Raj Kumar Baghal Singh
(dead) through legal representatives & ors.
(2014) 10 SCC 422
23.Shaji Kuriakose & anr. Vs Indian Oil
Corporation Ltd. & ors. (2001) 7 SCC 650
24.Kasturi & ors. Vs St. of Har. (2003) 1 SCC
354
25.Valliyammal & ors. Vs Special Land
Acquisition (2011) 8 JT 442
26.Bhule Ram Vs Union of India & anr. JT
(2014) 5 SC 110
27.Bhupal Singh & ors. Vs St. of Har. (2015) 5 SCC
801
28.Chandrashekhar Vs L.A. Officer (2012) 1
SCC 390
29.Subh Ram Vs St. of Har. (2010) 1 SCC 444
30.K. Devakimma & ors. Vs Tirumala Tirupati
Devasthanam & anr. (2015) 111 ALR 241
31.Brig. Sahib Singh Kalha Vs Amritsar
Improvement Trust (1982) 1 SCC 419
32.Administrator Gen. of W.B. Vs Collector,
Varanasi (1988) 2 SCC 150
33.In
Land
Acquisition
Officer
Revenue
Divisional Officer, Chottor Vs L. Kamalamma
(Smt.) Dead by & ors. (1998) 2 SCC 385
34.Land
Acquisition
Officer
Vs
Nookala
Rajamallu & anr. (2003) 12 SCC 334
35.V. Hanumantha Reddy (Dead) Vs Land
Acquisition Officer (2003) 12 SCC 642
36.Viluben Jhalejar Contractor Vs St. of Guj.
(2005) 4 SCC 789
37.Atma Singh Vs St. of Har.7 anr. (2008)2 SCC 568,
38.Andhra Pradesh Housing Board Vs K.
Manohar Reddy 7 ors. (2010) 12 SCC 707,
39.Special Land Acquisition Officer 7 anr. Vs
M.K. Rafiq Sahib (2011) 7 SCC 714
40.Nirmal Singh Vs St. of Har. (2015) 2 SCC 160
41.Major General Kapil Mehra & ors. Vs Union
Of India & anr. (2015) 2 SCC 262
42.Power Grid Corporation Vs St. of U.P.& ors.
(2019) 1 ADJ 753
2 All. Bulandshahr Khurja Development Authority, Bulandshahr Vs Smt. Amir Kuwar & Ors.
817
43.Sabhia Mohammed Yusuf Abdul Hamid
Mulla (d) by LRS & anr. Vs Special Land 42
Acquisition Officer & ors.(2012) 7 SCC 595
44.Viluben Jhalejar Contractor Vs St. of Guj.
(2005) 4 SCC 789
45.Urban Water Supply & Drainage Board &
ors. Vs K.S. Gangadharappa & anr. (2009) 11
SCC 164
46.St. of U.P. Vs Major Jitendra Kumar & anr.
AIR 1982 SC 876
47.Administrator Gen. of W.B. Vs Collector,
Varanasi AIR 1998 SC 943
48.Trishala Jain & anr. Vs St.of Uttranchal &
Anr. (2011) 6 SCC 47
49.Union of India & Ors. Vs Mangatu Ram
(1997) 6 SCC 59
50.Wazir & ors. Vs St. of Har. (2019) 3 SCJ
506 (SC)
51.Har.
St.
Industrial
Development
Corporation Vs Pran Sukh & ors. (2010) 11
SCC 175
52.Har.
St.
Industrial
Development
Corporation Vs Udal 7 anr. (2013) 14 SCC 506.
53.Ranjit
Singh
Vs
Union
Territory
of
Chandigarh (1992) 4 SCC 659;
54.Land
Acquisition
Officer
&
Revenue
Divisional Officer Vs Ramanjulu (2005) 9 SCC
594.
55.Krishi Utpadan Mandi Samiti Vs Bipin Kumar
(2004) 2 SCC 283.

(Delivered by Hon'ble Sudhir Agarwal, J.
Hon'ble Rajeev Misra, J.)

1. Sri B. Dayal, Advocate for
appellant in both these appeals and Sri
M.C. Singh, Advocate, for respondents in
First Appeal No. 3 of 2016.

2. In First Appeal No. 264 of 2012,
names of three counsel appear for
respondents as shown in the cause list,
one of whom namely Sri D.K. Mishra has
sought adjournment on the ground of
illness, but no reason has been assigned as
to why other counsel are not present
despite the case having been called in
revised. In such circumstances, we find no
justification to adjourn this matter and
proceed to decide present appeals after
hearing above mentioned learned counsel
appearing for respective parties. .

3. Both these appeals arise from two
similar but seperate Awards of Reference
Courts under Section 18 of Land
Acquisition
Act,
1894
(hereinafter
referred to as "Act 1894"), and have been
filed under section 54 of the said Act.
Since they involve common and similar
questions of facts and law, therefore, have
been heard together and are being decided
by this common judgement.

4. Appeal No. 264 of 2012
(hereinafter referred to as 'Appeal-1') is a
defendant's appeal arising from judgement
and Award dated 10.5.2010 and decree
dated 31.5.2010, passed by Sri Sushil
Kumar, Additional District and Sessions
Judge,
Court
No.9,
Bulandshahr
(hereinafter referred to as the 'Reference
Court') adjudicating Land Acquisition
Reference (hereinafter referred to as
'LAR') No. 184 of 2001 (Smt. Amir
kuwar Vs. State of U.P.), determining
market value of the acquired land for the
purpose of payment of compensation at
the rate of Rs. 8,50,000/- per Pakka Bigha
(Rs. 281/- per sq-yard) and Rs. 3,54,783/-
towards cost of the trees. Reference Court
has also awarded other statutory dues like
12%
additional
compensation,
30%
soletium and interest at the rate of 9% for
818 INDIAN LAW REPORTS ALLAHABAD SERIES
one year from the date of possession and
for subsequent period at the rate of 15%.

5. Appeal No. 3 of 2016 (hereinafter
referred to as "Appeal-2") is also a
defendant's appeal arising from judgement
and Award dated 24.9.2015 and decree
dated 6.10.2015, passed by Sri Rajat
Singh Jain, Additional District Judge,
Court No.2, Bulandshahr in LAR No. 1 of
2006, determining market value for the
payment of compensation at the rate of
Rs. 8,50,000/- per Pakka Bigha (Rs. 281/-
per sq-yards) besides other dues like 30%
solatium, 12% additional compensation
and interest as per various provisions of
the Statute. This Award has been
delivered following earlier Award dated
10.5.2010, passed in LAR No. 184 of
2001, which is subject of Appeal-1.

Appeal-1

6. Facts in brief giving rise to this
appeal are, that, Bulandshahr Khurja
Development
Authority
(hereinafter
referred to as "BKDA") is a statutory
body constituted under the provisions of
U.P. Urban and Planning Development
Act, 1973 (hereinafter referred to as "Act
1973") for undertaking development in
the area notified under Act 1973 of
District Bulandshahr at Khurja. For the
purpose of construction of residential and
commercial building, BKDA proposed
acquisition of land in village Akbarpur.
The proposed scheme was named as
'Yamunapuram
Avasiya
Yojna,
first
phase'. It proposed acquisition of 61.801
acres (299116.84 sq-yard or 98.88 Bigha)
land.

7. A notification dated 20.12.1988
under Section 4 of Act 1894 was
published in U.P. Gazette on 20.12.1988.
Notification dated 18.1.1989 making
declaration under section 6 of Act 1894
was published in U.P. Gazette dated
18.1.1989. Possession of land was taken
on 19.5.1989 and Award was published
by Special Land Acquisition Officer
(hereinafter referred to as "SLAO") on
4.4.1991. The said Award, however, did
not include Gatas No. 363 area 5-0-11;
385 area 10-0-11; 375 area 0-4-0 i.e. 3
plots of total area 18-5-2 for the reason
that respondent Smt. Amir Kunwar Devi
in appeal-1 had filed Writ Petition No.
3317 of 1989, challenging acquisition
Notifications and therein, an interim order
was passed on 21.2.1989. The said writ
petition was dismissed on 4.9.2000.
Thereafter, aforesaid land of respondent
Smt. Amir Kuwar Devi in Appeal-1 was
taken
in
possession
by
State
and
transferred to BKDA on 22.9.2000.
S.L.A.O
published
a
supplementary
Award
dated
10.5.2001,
offering
compensation to respondents in First
Appeals by determining market value for
the purpose of compensation of acquired
land, at the rate of Rs. 88,000/- per Bigha
(i.e. Rs. 29.09 sq-yard).

8. In the award dated 4.4.1991,
SLAO found that the part of land which
was sold in small area plots to various
sale-deeds, shows rates between Rs. 100/-
per sq-yard to 420/- per sq-yard. There are
some sale-deeds which show rates of Rs.
70/-
to
100/-
per
sq-yard.
SLAO
ultimately, relied on sale-deeds No. 84
dated 25.11.1987, which relates to Plot
No. 386, area 200 sq-yard (167.22 sqmeter) land was sold for consideration of
Rs. 2000/- i.e. Rs. 100/- per sq-yard.
Since the area of acquired land was much
bigger,
therefore
he
applied
25%
deduction and determined market value of
Rs. 75/- per sq-yard. Then it applied
2 All. Bulandshahr Khurja Development Authority, Bulandshahr Vs Smt. Amir Kuwar & Ors.
819
belting system, divided the said rate into
two i.e. Rs. 75/- per sq-yard land which is
nearer to Highway/G.T. Road and land
which was 50 meter and more deep, at Rs.
50/- per sq-yard. In respect of other land
which he found was agricultural land
applying circle rate, he determined market
value of Rs. 88,000/- per Pakka Bigha i.e.
Rs. 29.09 per sq-yard for Jungle Auwal Abi
and Rs. 56981/- for Jungle Auwal Khaki. In
the supplementary award dated 10.5.2001,
SLAO has followed earlier award by
applying rate of Rs. 88,000 per Pakka Bigha
i.e. Rs. 29.09 per sq-yard, which was
determined for Jungle Auwal Abi.

9. Respondent in Appeal-1, filed
Writ Petition No. 13729 of 2001 (Smt.
Amir Kunwar Devi Vs. B.K.D.A. and
Others), which was disposed of vide
judgement dated 13.4.2001, directing
Authority
concerned
to
decide
her
representation. The order reads as under:

"The present writ petition is disposed
of with the direction that it is open to the
petitioner to approach the authority
concerned for deciding the representation
which is said to be pending before him. It
is
hereby
directed
that
if
the
representation has not yet been decided, it
may be decided in accordance with law
very expeditiously.

The writ petition is disposed of with
the observations. "

10. The representation was rejected
by Vice Chairman, BKDA vide order
dated
6.7.2001.
Aggrieved
by
supplementary Award dated 10.5.2001,
Smt. Amir kunwar Devi, respondent in
Appeal-1,
made
an
application
to
Collector under Section 18 of Act 1894
requesting to make Reference to District
Judge for determination of market value
for the purpose of compensation, under
section 23 of Act 1894. She claimed
compensation at the rate of Rs. 10,000/-
per sq-meter and Rs. 75,00,000/- as the
cost of 400 mango trees and Rs. 50,000/-
compensation in respect of tubewell
installed at the acquired land.

11. The appellant contested Reference
by filing written statement, raising an
objection that there was already a settlement
between
parties,
wherein
claimantrespondent, Smt. Amir kunwar Devi, had
accepted compensation at the rate of Rs.
49.35 sq-meter. In this regard, agreement
was executed on 16.4.2003 and sale-deed
was executed on 16.4.2003 for 3001.84 sqyard
land,
hence
Reference
is
not
maintainable. Reference Court in Appeal-1
formulated five issues, as under :

^^1& D;k Hkwfe v/;kfIr vf/kdkjh }kjk fnuakd
10&05&2001 dks fn;k x;k ,okMZ ux.; gS rFkk
okn i= dh /kkjk&8 ds vuqlkj cktk: dher o
lfdZy jsV ds dbZ xquk de gS \

2& D;k ;kpuk i= dh /kkjk&7 ds vuqlkj
vf/kxzg.k O;olkf;d mn~ns'; ls fd;k x;k Fkk] ;fn
gkW rks izHkko \

3& D;k okn i= dh /kkjk&9 ds vuqlkj
vftZr Hkwfe esa ikS/kksa dh dher rFkk vU; V;wooSy o
{kfriwfrZ dh izfrdj vkfn ,okMZ esa ugh fn;k x;k gS]
;fn gkW rks izHkko \

4& D;k izfrokn i= 28d dh /kkjk&27 ds
vuqlkj ;kfpuh dk okni= iks"k.kh; u gksus ds dkj.k
[kkfjt gksus ;ksX; gS \

5& mi'ke \**

"1.
Whether
the
Award
dated
10.05.2001 passed by the Land Acquisition
Officer is null & void; and is many times
lesser than the market price and circle rate
as alleged in para 8 to the plaint?

2. Whether the acquisition was done
for commercial purpose as alleged in para
7 to the plaint? If so, its effect?
820 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Whether compensation for the cost
of planting, erection of tube-well, etc. in
the acquired land has not been awarded as
alleged in para 9 to the plaint? If so, its
effect?

4.
Whether
the
plaint
of
the
petitioner is liable to be dismissed as
being not maintainable as alleged in para
27 to the written statement being 28 Ka?

5. Relief?"

(English Tanslation by Court)

12. Claimant-respondent in Appeal1, in support of her claim, examined Sri
Virendra Singh P.W.1 and herself as
P.W.2.
Defendant's
oral
evidence
comprised of Sri Hari Singh as D.W.1.

13. Besides oral evidence, claimantrespondent in Appeal-1 filed copy of Award
in LAR No. 563 of 1991, Ashok Kumar Vs.
State of U.P; 266 of 1992, Kamal Mustafa
Vs. State of U.P; 68 of 1992, Tahir Khatoon
Vs. State of U.P and also submitted 61 saledeeds executed between year 1991 to 2003
through List, Paper No. 29-C. Vide List
Paper No. 151- C, she filed copies of 6 sale
deeds; and vide List Paper No. 163-C,
copies of 6 more sale deeds were filed. She
also filed copy of Award dated 29.4.1995 in
LARs No. 100 of 92, 169 of 92, 195 of 92
and 67 of 1992; copy of judgement dated
7.4.2010, passed by this Court in First
Appeal No. 102 of 2000 (BKDA Vs. Ajay
Kumar) and First Appeal No. 103 of 2000
(BKDA Vs. Arvind Kumar).

14.

Defendant-appellants
filed
copies of 19 sale-deeds executed between
13.4.1987 to 15.7.1987, Award dated
4.4.1991 given by SLAO and agreement
dated 16.4.2003.

15. Reference Court found that
SLAO has determined market rate for the
purpose of compensation at Rs. 88,000/-
per Pakka Bigha (Rs. 29.09 per Sq-yard)
for agricultural land, and Rs. 49.35 per sqyard for abadi land. While answering
issue-1, it has held that sale exemplars
relied by SLAO are 1 to 2 years earlier to
the date of notification under Section 4 of
Act 1894 and land in those exemplars
situated more than 100 meters away from
the main road, while land in dispute was
appurtenant to G.T Road, therefore, those
exemplars were not valid in respect of
land in dispute. Reference Court also
rejected
three
sale-deeds
relied
by
Claimant- respondents, filed along with
List Paper No.160-C, on the ground that
the same relate to the land which is far
away from disputed land and hence not
relevant
in
the
matter.
Similarly,
documents filed as Paper No. 30-C to 60C
were
also
rejected.
Thereafter,
Reference Court referred to Awards given
in LARs No. 168 of 1992, 169 of 1992,
195 of 1992 and 67 of 1992.

16. In LAR No. 195 of 1992, Plot
No. 85, area 68 sq-yrd, was acquired for
the same scheme with which the present
matter
relates.
Reference
Court
determined market value at Rs.400/- per
sq-yard, while in other References i.e.
LARs No. 168 of 1992, 169 of 1992 and
67 of 1992, market rate was determined at
Rs. 350/- per sq-yard. First Appeals No.
102 and 103 of 2010 filed by BKDA,
challenging aforesaid determination of
market value were dismissed on 7.4.2010.

17. Reference Court also examined
difference in aforesaid References and the
present one, inasmuch as area of land
involved in aforesaid References was very
small while in the present case, total area
was more than 15 Pakka Bigha, which is a
very
bigger
plot.
Consequently,
it
2 All. Bulandshahr Khurja Development Authority, Bulandshahr Vs Smt. Amir Kuwar & Ors.
821
followed the principle of deduction
towards largeness of area and found that
in the Awards, wherein appeals were
dismissed, land was about 5 Pakka bigha
and more, and its value comes to Rs.
10,50,000/- per Bigha; since in the case in
hand it is thrice bigger, it held appropriate
to allow 10 % deduction per Bigha and
therefore, deducting Rs. 2,00,000/- lump
sum, it determined market value at Rs.
8,50,000/- per Bigha (i.e. Rs. 281/- per sq
yard).

18. Reference Court has also stated
that during course of argument, counsel
for B.K.D.A. admitted that tenure holders
have already been paid compensation at
the rate of Rs. 300/- per sq-yard. Issue-1
was answered accordingly, determining
market rate at the rate of Rs. 8,50,000/-
per Pakka Bigha (i.e. Rs. 281 per sqryard).

19. Issue 2 was also answered in
favour of Claimant-respondent. Issue-3,
since in the Award dated 10.5.2001, no
compensation was awarded in respect of
trees and tubewell, hence it was answered
in favour of Claimant-respondent holding
that she was entitled for compensation in
respect of standing trees and it determined
compensation of Rs. 3,54,783/- on this
count.

20. Answering issue-4, Reference
Court found that alleged agreement was
confined only in respect of 3001.83 sqyard land and not the remaining one,
therefore,
for
remaining
land,
said
agreement was not relevant, particularly
when it was clearly stated that Reference
pending in Reference Court, only to the
extent of area of land for which settlement
was entered into, would not be pressed.
Issue-5 was also answered in negative and
thereafter Reference has been answered as
stated above.

21. Appeal-2 also relates to the same
acquisition
proceedings
arising
from
notifications dated 20.12.1988 issued
under section 4 of Act 1894 and
18.1.1989 issued under section 6 of Act
1894.

22. Claimant-respondent, Sri Atul
Chandra and Smt. Vibha Chand, are
owners of Khata No. 132 Gata No. 358
area 3-9-0 and Gata No. 384 area 4-16-10.
Possession of aforesaid land was also
belated due to writ petition filed by
Claimant-respondent before this Court
and ultimately, possession was taken on
22.5.2000. Award was made by SLAO on
7.7.2005, offering compensation at the
rate of Rs.88,000/- per Bigha i.e. Rs.
29.09 per sq-yard. Aggrieved thereby,
Claimant-respondents made application
under section 18 for Reference to District
Judge for determining market value under
section 25 of Act, 1894, claiming
compensation at the rate of Rs. 5,000/-
per sqr. mtr. Here also Reference Court
formulated five issues, as under:

"1.
Whether
the
compensation,
awarded to the petitioners for their
acquired land is insufficient?

2. Whether the acquired land is of
residential and commercial potentiality?"

3. Whether the petition is barred by
principles of estoppels and acquiescence?

4. Whether the reference is time
barred?

5. Relief?

23. Issue -3 and 4 were answered in
negative. Answering issue-1, Reference
Court also followed the same reasonings
as were followed by Reference Court in
822 INDIAN LAW REPORTS ALLAHABAD SERIES
its Award dated 10.5.2010, passed in
LAR. No. 184 of 2001 and determined
market value at the rate of Rs. 8,50,000/-
per Pakka Bigha ( i.e. Rs. 281/- per sqr
yard) for the purpose of compensation.

Contentions in these Appeals

24. Learned counsel appearing for
appellants has confined his challenge to
the awards in question only to the extent
of
market
value
of
acquired
land
determined at the rate of Rs. 8,50,000/-
Bigha (i.e. Rs. 281/- per sq-yard). He
submits that determination of market
value by Reference Court is imaginary,
highly excessive, unreal and beyond the
rates prevailing in the area at the time of
issue of notification under Section 4 of
Act 1894. He also contended that relevant
exemplars have been ignored, findings are
based on exemplars, which pertained to
very small land and should not have been
treated
to
be
a
valid
exemplars;
percentage of deduction applied towards
largeness of area is almost negligible, and
deduction ought to have been applied to a
larger extent, and thus the awards are
liable to be set aside.

25. Per contra, learned counsel
appearing
for
claimant-respondents
submitted that acquired land is in highly
developed area, appurtenant to Highway
i.e. G.T. Road and had great potential of
development; mere fact that it was used
for agricultural purpose has no relevance
for the reason that near-by area was
already developed as Abadi, having all
amenities and facilities; land was being
sold in small plots at a much higher rates
than
what
has
been
Awarded
by
Reference
Court,
therefore,
no
interference is called for. Lastly, he
submitted that poor farmers have lost their
source of livelihood i.e. agricultural land
pursuant to acquisition in question as long
back as in December, 1988 and after more
than 31 years, are still engaged in
litigation and that too only to get
appropriate consideration of land, which
has been snatched away forcibly by
acquisition by State without paying
compensation at market value and still
they are reeling in hope of getting
appropriate market value which for all
practical purposes has already lost much
substance for the reason that whatever
amount now they will get, would not be
sufficient to enable them to purchase
another land, since cost of land has
multiplied
several
hundred
times,
particularly,
due
to
extraordinary
development in the vicinity of BKDA
area and sky rocketing prices of land.
Now alternative land to respondents has
become a dream, which cannot be
achieved. Therefore, State on the one
hand had taken away their land and on the
other
has
failed
to
pay
adequate
compensation at par with the market value
and
lastly
by
engaging
claimantrespondent in litigation for last three
decades,
it
has
virtually
rendered
respondents totally landless and also
without any source of earning livelihood.
It is also said that how and in what
manner
respondents
had
met
their
expenses
and
managed
litigation
expenses, is something which only
respondents know and even if payment is
now made to respondents as per rates
determined by Reference Court, it would
be virtually negligible part of actual
market value of the land acquired by
BKDA, which it can fetch now. He,
therefore, submitted that it is not a fit case
in
which
Court
should
interfere,
particularly when substantial justice has
been done and Reference Court has made
2 All. Bulandshahr Khurja Development Authority, Bulandshahr Vs Smt. Amir Kuwar & Ors.
823
its Award on the basis of relevant material
placed before it.

26. It is not in dispute that
determination of market value is to be
made with reference to date when
notification under Section 4 of Act 1894
was issued and in the present case, the
relevant date would be 20.12.1988.

27. From the rival submissions
advanced on behalf of both the sides, in
our
opinion,
following
points
for
determination have arisen:

(i) Whether Reference Court has
rightly determined market rate of Rs.
8,50,000.- i.e. Rs. 281/- per square meter
of entire acquired land irrespective of
area of individual plots of Land Owners,
their location and other relevant factors?

(ii) Whether Reference Court ought
to have considered the question of
determination of market value, with
reference to entire area of acquired land,
its
location/situation
and
other
developmental advantages/ disadvantage
vis-a-vis relevant exemplars or it should
be vis-a-vis different plots of different
Land Owners?

(iii) Where area of acquired land is
very large and from main G.T. Road land
goes in deep to the extent of more than
500 meters, whether 'Belting System'
ought to have been applied and Court
below has erred in law by not applying
'Belting System'.

(iv) Whether Court below has rightly
followed exemplar sale-deed and awards
in
other
LARs,
relating
to
same
acquisition proceedings has erred in law
in rejecting exemplar sale-deeds, relied
by appellants and placed in evidence?

(v) Whether Reference Court has
considered/ rejected relevant exemplars
or has followed exemplar(s), which
was/were not valid and inapplicable in
the case in hand and its findings is based
on irrelevant material?

28. All the aforesaid issues are
interrelated, therefore, we are considering
the same together.

29. Before examining the aforesaid
issues on merits, it would be appropriate
to have a bird eye view of relevant legal
principles settled in last several decades,
which are to be applied when market
value of a land acquired, forcibly, under
the provisions of Act, 1894 has to be
determined by Court in a Reference made
under Section 18 of the said Act.

30. In the light of rival submissions,
as noticed above, we have now to
examine the only point for determination,
"whether market value determined by
Reference Court is just, adequate and
actual or it is excessive and on a higher
side which requires reduction".

31. Before examining the aforesaid
issue on merits, it would be appropriate to
have a bird's eye view of relevant legal
principles settled in last several decades,
which are to be applied when 'market
value' of a land acquired forcibly under
the provisions of Act, 1894 has to be
determined by Court in a Reference made
under Section 18 of the said Act.

32. In Chimanlal Hargovinddas vs.
Special Land Acquisition Officer (1988)
3 SCC 751, Court has said that a
reference is like a suit which is to be
treated
as
an
original
proceeding.
Claimant is in the position of a plaintiff
who has to show that price offered for his
land
in
the
Award
is
inadequate.
824 INDIAN LAW REPORTS ALLAHABAD SERIES
However, for the said purpose, Court
would not consider the material, relied
upon by Land Acquisition Officer in
Award, unless some material is produced
and proved before Court.

33. Thus, Reference Court does not
sit in appeal over the Award of Land
Acquisition Officer. Material used by
Land Acquisition Officer is not open to be
used by Court suo motu unless such
material is produced by the parties and
proved independently before Reference
Court. Determination of market value has
to be made as per market rate, prevailing
on the date of publication of notification
under section 4 (1) of Act, 1894.

Circle Rate- Relevance:

34. As we have noticed that circle
rates were also relied before Reference
Court. In law circle rates are irrelevant
and ought not to have been considered. In
the matters where circle rates are relied
and referred such an approach has been
castigated, condemned and disapproved
by Courts time and again.

35. In Jawajee Nagnatham v.
Revenue Divisional Officer, (1994) 4
SCC 595, this question came up for
consideration in the matter arisen from
State of Andhra Pradesh. The landowners
appealed against order of Reference Court
before Andhra Pradesh High Court
claiming higher compensation on the
basis of "Basic Valuation Register"
maintained by Revenue authorities under
Stamp Act, 1899. The claim of LandOwners failed in High Court, which held
that such Register had no evidenciary
value on statutory basis. In appeal,
Supreme Court held that Basic Valuation
Register was maintained for the purpose
of collecting stamp duty under Section
47-A of Stamp Act, 1899 as amended in
State of Andhra Pradesh. It did not confer,
expressly, any power upon Government to
determine market value of land prevailing
in a particular area, i.e., village, block,
district or region. It also did not provide a
statutory
obligation
upon
Revenue
authorities to maintain Basic Valuation
Register for levy of stamp duty in regard
to instruments presented for registration.
Therefore, there existed no statutory
provision
or
rule
providing
for
maintaining such valuation register. In the
circumstances, such register prepared and
maintained for the purpose of collecting
stamp duty had no statutory force or basis
and cannot form a valid criteria to
determine market value of land acquired
under Act, 1894. This decision was
followed in Land Acquisition Officer
Vs. Jasti Rohini, 1995 (1) SCC 717.

36. Another matter from State of U.P.
came up for consideration involving same
issue in U.P. Jal Nigam Vs. M/s Kalra
Properties (P) Ltd., (1996) 3 SCC 124.
Landowners' demanded compensation in
regard to land acquired under Act, 1894 on
the basis of market value assessed as per
circle rate determined by Collector. It was
accepted by High Court, but in appeal,
judgment was reversed by Supreme Court
following its earlier decision in Jawajee
Nagnatham (supra). Court held that market
value under Section 23 of Act, 1894 cannot
be determined on circle rates determined by
Collector for the purpose of stamp duty
under Stamp Act, 1899. This view was
reiterated in Krishi Utpadan Mandi Samiti
Vs. Bipin Kumar, (2004) 2 SCC 283.

37. The issue was again considered
by a larger Bench in Lal Chand Vs.
Union of India and another (2009) 15
2 All. Bulandshahr Khurja Development Authority, Bulandshahr Vs Smt. Amir Kuwar & Ors.
825
SCC 769 wherein two Judgments of Apex
Court taking a view that circle rates may
be considered, as prima facie basis, for
the purpose of ascertaining market value,
were examined. These decisions are
Ramesh Chand Bansal v. District
Magistrate/Collector, (1999) 5 SCC 62
and
R
Sai
Ram
Bharathi
v.
J
Jayalalitha, (2004) 2 SCC 9. Court
resolved controversy, holding, if in a
particular case, guidelines for market
values are determined by an Expert
Committee constituted under State Stamp
Law, following a detailed procedure laid
down under the relevant rules and are
published in State Gazette, same may be
considered as a relevant material to
determine 'market value'. Court said,
when guidelines of market value, i.e.,
minimum
rates
for
registration
of
properties,
are
so
evaluated
and
determined by Expert Committees, as per
statutory procedure, there is no reason
why such rates should not be a relevant
piece of evidence for determination of
market value. Having said so, in para 44,
Court further said:-

"44. One of the recognised methods
for determination of market value is with
reference to the opinion of experts.