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PETITIONER: V.G. KULKARNI

       Vs.

RESPONDENT: THE SPL. LAND ACQUISITION OFFICER

DATE OF JUDGMENT:       15/03/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. NANAVATI G.T. (J)

CITATION:  JT 1996 (4)   220        1996 SCALE  (3)297

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Notification under Section 4(1) of the Land Acquisition Act, 1894  [for short,  the ’Act’]  acquiring 20 acres and 4 gunthas of land for industrial development, was published on January 21,  1982. The  Land Acquisition  Officer determined compensation at the rate of Rs.8000/- per acre. On reference the Civil Court enhanced the compensation to Rs.8.97 per sq. ft. which  worked out  to Rs.3,90,000/- per acre. On appeal, the High  Court reduced  the compensation  to  Rs.67,200/per acre. Thus, this appeal by special leave.      Shri Javali,  learned senior  counsel for the appellant contended that the High Court, having noticed that the lands are possessed  of immense  potentiality for non-agricultural use and  that Dharwad  City has  been developing towards the land under  acquisition, committed  grievous error of law in reducing the  compensation.  He  also  referred  to  another judgment of  the High  Court wherein the High Court had held that 10%  escalation in  price is to be given for each year. In this case, even accepting the view of the High Court that Rs.67,200/- would  be the  market value,  due to time lag of about 10 months from previous notification, the appellant is entitled to 10% more compensation.      The question, therefore, is: whether the High Court has committed any error of law or applied wrong principle of law in determining  the compensation?  The High Court in para 37 found that  the sale  deeds Exs.P-2 to P-7 being of the year 1985, i.e.,  3-1/2 years  after the  notification  published under Section  4(1), were  not  comparable  sales  Moreover. those  sale  deeds  related  to  small  corner  plots  in  a developed area.  Therefore, they do not offer any comparable sales. The  High Court  also found that though the lands are situated towards  the University  area which  is developing, actual development  would take  some more years. There is no evidence of actual development taking place near the land in question. Under  those circumstances,  in the absence of any comparable  sale  instances,  the  High  Court  relied  upon

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determination of the market price at Rs.56,000/- per acre in respect of nearby lands which were the subject-matter of MFA Nos.678 to  681 of  1989 and  which were also disposed of by the High  Court on  that day,  viz., September  25, 1992 and added the  notification 20%  this case  is of  January 1982. Thus the High Court determined the compensation in this case at the rate of Rs.67,200/- per acre. It can be seen from the evidence on  record that  as on the date of the notification the acquired lands did not possess building potentiality. In view of the evidence on record that it would have taken 3 to 4 years for actual development of area, the finding recorded by the  Reference Court  that the  lands possessed  building potentiality was  not correct.  It appears  that the learned District  Judge  did  not  correctly  appreciate  the  legal position. Therefore,  determination of  the compensation  by the Reference  Court on the basis that the lands had already acquired building  potentiality was  not at  all proper.  No willing purchaser  would have purchased the land at the rate of Rs.3,90,000/-  per acre.,  The acid  test  of  the  court sitting in  the arm  chair of a willing prudent purchaser in open market is whether the would be prepared to purchase the land at  the rate  about to  be determined by the court. The sale deeds,  Exs.P-2 and  P-3 relied  upon by  the claimants were not  comparable sales  as found  by the High Court. The lands were  sold in  plots near  the acquired  lands only in 1985, only after Further development had taken place in that area. Therefore,  those two instances of sale could not have afforded   a   reasonable   basis   for   determination   of compensation. The  High Court,  therefore, has not committed any error of law in rejecting those sale instances.      Further contention  of  the  learned  counsel  for  the appellant that  since the  judgment in  the  above  referred cases [MFA  Nos 678 to 681 of 1989] has not been made a part of the  record of  this case,  the High Court could not have taken note  of the  compensation determined  at the  rate of Rs.56,000/- per  acre in  those cases.  Though legally,  the learned counsel  is right,  he overlooks  the fact  that the High Court  has done  it to  do  justice  to  the  appellant instead of  throwing its  hands up in despair in the absence of evidence justifying giving of higher compensation instead of what  was awarded by the Land Acquisition Officer. It has held that  though the  claimants have failed to establish on the basis  of evidence led tn the case that the compensation awarded by  the Land  Acquisition  Officer  deserved  to  be enhanced, it  can take notice of the market value determined in comparable  cases disposed  of on that day. If at all any complaint could  be made  in this behalf, it would be by the State and not by the appellant. With regard to escalation of market price  of lands  every year  it has to be stated that the principle  of taking  judicial notice cannot be extended to such a matter also. Each case has to be considered on its own facts.  The claimants  would be required to establish by adducing evidence  that there  was gradual rise in price due to  development   and  constant   demand  for  land  in  the neighborhood. Therefore,  the approach  adopted by  the High Court cannot be said to be vitiated by any error of law. The High Court has in fact extended the benefit of escalation in price to  the claimants,  by  increasing  the  market  value determined at  Rs.56,000/- per acre in the aforesaid case by 20%.      For all  these reasons, we hold that the High Court has not committed any illegality in determining the compensation at Rs.67,200/- per acre and holding that further increase in the market price by the reference Court was not justified.      The appeal is dismissed with costs.

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