Saibanna
'Dead' by LRS. Vs. Asst. Commnr. & Land Acquisition Officer [2009] INSC
1461 (19 August 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3726 OF
2001 Saibanna `Dead' by LRs. .. Appellant Versus Assistant Commissioner &
Land
Acquisition Officer .. Respondent
Dalveer
Bhandari, J.
1.
This appeal is directed against the judgment of the High Court of
Karnataka at Bangalore dated 16.3.2000 in Miscellaneous First Appeal (for
short, M.F.A.) No. 3232 of 1996.
2.
The facts in nutshell are as follows:
The
preliminary notification was issued on 13.8.1981 to acquire 4 acres and 27
guntas of land belonging to the appellant situated in Survey Nos. 129/1, 129/3,
129/4 and 129/74 situated in Taj Sultanpur, Gulbarga City in 2 Karnataka. The
award was passed on 30.6.1986 awarding compensation at the rate of Rs.2,500/-
per acre.
3.
The Reference Court by its judgment and award dated 8.4.1996
determined the market value at the rate of Rs.19,500/- per acre.
4.
The appellant aggrieved by the said judgment preferred M.F.A. No.
3232 of 1996 before the High Court. The appellant placed reliance on the
judgments and awards passed in M.F.A. No. 3738 of 1995 dated 20.1.1998 and
M.F.A. No. 2557 of 1997 dated 27.1.1998, wherein the market value of the lands
located at almost the same distance from Gulbarga city and is having same
potentiality of development. The appellant also produced notification dated
30.10.1965 to show that the Taj Sultanpur village was declared to be within the
municipal limits of Gulbarga city of Karnataka.
5.
The High Court dismissed the appeal without considering the main
submission of the appellant that the acquired lands are within the municipal
limits of Gulbarga city and the deduction at the rate of 53% towards the
development charges is excessive and not in consonance with the law laid down
by the Full Bench of the High Court and by this Court.
6.
In the present appeal, the appellant is aggrieved by the deduction
at the rate of 53% towards development charges. In the present case, the
following questions of law formulated by the appellant are reproduced as
under:- "A. Whether the High Court has committed a serious error in
deducting 53% towards development charges in the facts and circumstances of the
case? B. Whether the High Court has committed a serious error in not
appreciating that the acquired lands come within the Municipal limits of the
city of Gulbarga and therefore the development charges cannot be more than
33-1/3%? C. Whether the decision of Full Bench of the Karnataka High Court is
binding on the learned Judge passing the impugned judgment? D. Whether the High
Court has failed to appreciate that the judgment in other appeals is applicable
as it has the same potentiality? E. Whether the High Court has failed to take
note of the other evidences produced by the appellant such as valuer's
evidence?"
7.
During the course of hearing, the parties have focused the entire
argument as to whether deduction at the rate of 53% was in consonance with law
or not? The appellant placed reliance on the judgment of this court in K.S. Shivadevamma
& Others v. Assistant Commissioner & 4 Land Acquisition Officer &
Another (1996) 2 SCC 62. In para 10 of the judgment, this Court accepted the
argument that 53% deduction is not automatic but depends upon the nature of the
development and the stage of development, meaning thereby that it would depend
upon the facts and circumstances of each case. In this case, this court has
further observed as under:- "This court has laid as a general rule that
for laying the roads and other amenities 33-1/3% is required to be deducted.
Where the development has already taken place, appropriate deduction needs to
be made."
8.
This Court in Kasturi & Others v. State of Haryana (2003) 1
SCC 354 has extensively dealt with this aspect and observed in para 7 as under:
".....
It is well settled that in respect of agricultural land or undeveloped land
which has potential value for housing or commercial purposes, normally 1/3rd amount
of compensation has to be deducted out of the amount of compensation payable on
the acquired land subject to certain variations depending on its nature,
location, extent of expenditure involved for development and the area required
for roads and other civic amenities to develop the land so as to make the plots
for residential or commercial purposes. A land may be plain or uneven, the soil
of the land may be soft or hard bearing on the foundation for the purpose of
making construction; may be the land is situated in the midst of a developed
area all around but that land may have a hillock or may be low-lying or may be
having deep ditches. So the amount of expenses that may be incurred in
developing the area also 5 varies. A claimant who claims that his land is fully
developed and nothing more is required to be done for development purposes,
must show on the basis of evidence that it is such a land and it is so located.
In the absence of such evidence, merely saying that the area adjoining his land
is a developed area, is not enough particularly when the extent of the acquired
land is large and even if a small portion of the land is abutting the main road
in the developed area, does not give the land the character of a developed
area. ......."
This
court in the said case also observed that there is a difference between a
developed area and an area which is yet to be developed. The fact that an area
is developed or adjacent to a developed area will not ipso facto make every
land situated in the area also developed to be valued as a building site or
plot, particularly when vast tracts are acquired.
9.
In substance, the ratio of the judgment in Kasturi & Others
(supra) is that the deduction would depend on several factors, particularly the
extent of land in question, location of the said land and the proximity of the
land from the municipal limits.
10.
In the instant case, the land in question is within the municipal
limits of Gulbarga city since 1965. The Taj Sultanpur village is located only
at a distance of 2-1/2 kms.
6 from
Gunj locality of Gulbarga City and, therefore, it is located within the close
vicinity of Gulbarga City. The Taj Sultanpur village is adjoining Shak Roza and
Vakkalgera limits of Gulbarga city which are part and parcel of Gulbarga city
for a long period. So the cost of development is not likely to be very high. As
laid down in K.S. Shivadevamma's case (supra), as a general rule that for
laying the roads and other amenities 33-1/3% is required to be deducted.
11.
Deduction at the rate of 53% as laid down in the impugned judgment
seems to be on the higher side and is not in consonance with the ratio laid
down by this Court. We would like to emphasize that there cannot be any hard
and fast or a rigid rule. Every case has to be decided on its individual facts
taking into consideration various facts and circumstances.
12.
In the instant case, neither the Reference Court nor the High
Court has assigned any specific reasons for making deduction at a rate more
than 33-1/3%. On consideration of the ratio laid down by this Court in
Kasturi's case (supra) and in V. Hanumantha Reddy (dead) by LRs. v. Land
Acquisition Officer & Mandal R. Officer (2003) 12 SCC 642 7 and in the
facts and circumstances of this case, in our considered view, deduction at the
rate of 53% is on the higher side and it should not be more than 33-1/3%.
13.
On consideration of the totality of the facts and circumstances of
the case, the impugned judgment of the High Court is modified to the extent of
deduction charges. We direct the respondent to make deduction at the rate of
33-1/3% towards development charges.
14.
In view of the above, the appeal stands allowed. The impugned
judgment of the High Court is modified and disposed of in the abovementioned
terms. The parties are directed to bear their own costs.
.................................J. (Dalveer Bhandari)
.................................J. (Harjit Singh Bedi)
New Delhi;
August 19, 2009.
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