G.M., OIL & NATURAL GAS CORPORATION LTD. Vs. RAMESHBHAI JIVANBHAI PATEL & ANR.
Coram
R.V. RAVEENDRAN, LOKESHWAR SINGH PANTA
Citation
, 2008(11 )SCR927 , , 2008(11 )SCALE637 , 2008(9 )JT480 ,2008 LAC 483 SC
Head Notes
HELD: Court should avoid determination of market value with reference to subsequent/future transactions - In the instant case, acquisition being in a rural area and there being no evidence of out-of-ordinary developments or increase in price in the area, an escalation of 7.5% per annum over and above the 1987 price of sale instance would be appropriate to arrive at market value of acquired lands - As percentage of increase is always with reference to previous year's market value, appropriate method is to calculate the increase cumulatively and not at flat rate - For calculation of increase in price, the year of relied-upon transaction would be excluded - Rate of relied-upon transaction being Rs.10 in 1987, market price by increase in 1992 would be 14.35 per sq. m. - Deducting Rs.1.35 towards distance factor, market price would be determined at Rs.13/- per sq. m. - Claimants would, thus, be entitled to compensation at the rate ofRs.13/- per sq. m., with additional amount u/s 23(1-A) and solatium u/s 23(2) and interest thereon @ 9% for one year and 15% thereafter as awarded by reference court - Interest. [Para 13-15, 17-18,20] [935 D-F; 936 A; 937 C-G; 938 C-F]
Judgment Made On
31/07/2008
Reportable
These appeals by special leave are by the beneficiary of
acquisition (ONGC), aggrieved by the quantum of compensation
awarded to the respondents.
2. An extent of 13 Hectares 78 Are and 97 sq.m. in Ijapura
Village, District Mehsana, Gujarat, was acquired for one of ONGC
installations, namely "Influent pit-Santhal I', under preliminary
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notification dated 15.9.1992 issued under section 4(1) of the Land
Acquisition Act, 1894 (`Act' for short) followed by final notification
dated 31.3.1993 under section 6 of the Act. The Special Land
Acquisition Officer, ONGC, passed an Award dated 16.11.1994
determining the market price as Rs.2.10 per sq.m. The respondents -
land owners, sought reference to civil court claiming Rs.30 per sq.m.
3. Before the Reference Court, the respondents did not place any
evidence by way of contemporaneous sale transactions in the
neighbourhood. But they placed reliance on some awards passed by
the said Court in other acquisition cases, in particular, the following
two awards:
(i) Ex. 15 - relating to acquisition of lands for ONGC, in the
neighbouring Santhal village under preliminary notification dated
6.1.1987, wherein compensation at the rate of Rs.10 per sq.m was
awarded.
(ii) Ex. 16 - relating to acquisition of lands at Chalasana village at
a distance of 4 Kms. from Ijapura village under preliminary
notification dated 31.7.1986, wherein compensation at the rate of
Rs.10 per sq.m was awarded.
The Land Acquisition Officer did not choose to adduce any evidence
nor produce the sale deeds referred to in his award in support of the
market value arrived at by him at Rs.2.10 per sq. m.
4. The Reference Court allowed the claim in part by Judgment
and Award dated 7.10.1999. It determined the market value of the
acquired lands at Rs.17.10 per sq.m based on the said two awards -
Ex. 15 relating to the neighbouring Santhal village and Ex. 16
relating to Chalsana village. It found that under the said awards Rs.10
per sq. m. has been awarded for acquisitions in the year 1986 and
1987. As the acquisition in the cases on hand was on 15.9.1992, it
increased the value cumulatively at the rate of 10% per annum and
arrived at a value of Rs.19.10 per sq.m by treating the gap between
the relied-on-acquisitions and the present acquisition as six and half
years. Thereafter, it reduced Rs.2/- per sq. m. therefrom for the
distance factor (distance between Ijapura and the other two villages)
to arrive at the market value as Rs.17.10 per sq.m. The Reference
Court also awarded additional compensation under section 23(1A)
and solatium under section 23(2) of the Act. It awarded interest under
section 28 of the Act at 9% PA for a period of one year from the date
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of taking possession and 15% per annum thereafter, on the actual
compensation amount, and not on the additional amount under
section 23(1A) or the solatium under section 23(2) of the Act.
5. The appellant challenged the said award of the Reference Court
before the High Court. The High Court dismissed the appeals holding
that the determination of the market value by the Reference Court did
not call for interference.
6. The appellant urged the following two contentions in support
of the appeals against the said judgment:
(i) Ex. 15 and Ex. 16 did not relate to the Ijapura village, but
related to other villages, namely neighbouring Santhal and far away
Chalsana (at a distance of 4 kms). The market value of lands in those
villages cannot furnish the basis for determining the market value in
regard to the acquired lands situated at Ijapura.
(ii) Even if Ex. 15 and 16 could validly be the basis for
determining the market value of lands at Ijapura, the Reference Court
and High Court committed three errors in calculating the increase: (a)
in applying an annual increase at a high rate of 10% per annum; (b) in
calculating the annual increase cumulatively instead of at a flat rate;
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and (c) in calculating the increase for a period of six and half years
instead of for five years.
The appellant submitted that even if Ex.15 was to be the basis, having
regard to the date of relied-on acquisition under Ex.15 (6.1.1987) and
date of present acquisition of the Ijapura lands (15.9.1992), the
increase ought to have been calculated for only five years; that the
percentage of increase should not have been more than a flat rate of
5% per annum; that therefore, the increase ought to have been only
Rs.2.50 for 5 years and the market value of Santhal lands in 1992
would have been Rs.12.50 per sq.m. and not Rs.19.10; and that if
Rs.2/- was deducted for the distance factor, as was done by the
Reference Court, the market price would be only Rs.10.50 per sq. m.
and not Rs.17.10 per sq.m.
Whether reliance on Ex.15 and 16 erroneous?
7. The fact that Santhal village adjoins Ijapura is not disputed.
The fact that Ex.15 related to the acquisition of lands in the
neighbouring Santhal village, for the benefit of the appellant - ONGC
is also not disputed. The Reference Court and the High Court have
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recorded a concurrent finding of fact that having regard to the
proximity and similarity between the lands at Santhal covered by Ex.
15 and the acquired lands in Ijapura, the market value determined in
regard to the Santhal lands afforded a reasonable basis for
determining the market value of the acquired lands. We also find
from the evidence of one of the claimants - Laljibhai examined as
CW1, that the boundaries of Santhal, Kasalpura and Modipur villages
are adjacent to the acquired lands; and that the lands of one
Ramanbhai Keshavlal of Santhal Village acquired on 6.1.1987
(subject matter of Ex.15) and the acquired lands were in neighbouring
areas divided only by three or four agricultural fields. We also find
that the Ex. 15 was also the basis for determining the market value of
lands which were the subject matter of another acquisition for ONGC
in Santhal and other villages under notification dated 31.7.1986; and
that this Court affirmed the award of compensation at the rate of
Rs.10 per sq. m. in regard to such acquisition relying on Ex. 15 (vide
in ONGC Ltd. v. Sendhabhai Vastram Patel & Ors., 2005 (6) SCC
454). We are therefore of the view that in the absence of any evidence
relating to sale transactions or acquisitions relating to the village of
Ijapura itself, and having regard to the evidence relating to proximity
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of Santhal lands, Ex.15 offered a reasonable basis for determining the
market value of the acquired lands in Ijapura. In view of Ex.15
relating to neighbouring Santhal, Ex.16 relating to Chalsana loses
relevance.
What should be the increase per annum?
8. The contention of appellant is that even if Ex. P15 should be
the basis, in the absence of any specific evidence regarding increase
in prices between 1987 and 1992, the annual increase could not be
assumed to be 10% per year.
9. On the other hand, the learned counsel for the
respondents/claimants submitted that the rate of escalation in market
value at the relevant time was in the range of 10% to 15% per annum.
He relied on the decisions of this Court in Ranjit Singh v. Union
Territory of Chandigarh [1992 (4) SCC 659], and Land Acquisition
Officer and Revenue Divisional Officer v. Ramanjulu & Ors. 2005 (9)
SCC 594 wherein this Court had accepted an escalation of ten per
cent per annum, and the decision in Krishi Utpadan Mandi Samiti
Sahaswom v. Bipin Kumar 2004 (2) SCC 283 where this Court had
accepted an escalation of 15% per annum. He, therefore, submitted
that escalation at the rate of 10 per cent adopted by the Reference
Court and approved by the High Court is a reasonable and correct
standard to be applied.
10. We have examined the facts of the three decisions relied on by
the respondents. They all related to acquisitions of lands in urban or
semi-urban areas. Ranjit Singh related to acquisition for development
of Sector 41 of Chandigarh. Ramanjulu related to acquisition of the
third phase of an existing and established industrial estate in an urban
area. Bipin Kumar related to an acquisition of lands adjoining
Badaun-Delhi Highway in an semi-urban area where building
construction activity was going on all around the acquired lands.
11. Primarily, the increase in land prices depends on four factors -
situation of the land, nature of development in surrounding area,
availability of land for development in the area, and the demand for
land in the area. In rural areas unless there is any prospect of
development in the vicinity, increase in prices would be slow, steady
and gradual, without any sudden spurts or jumps. On the other hand,
in urban or semi-urban areas, where the development is faster, where
the demand for land is high and where there is construction activity
all around, the escalation in market price is at a much higher rate, as
compared to rural areas. In some pockets in big cities, due to rapid
development and high demand for land, the escalations in prices have
touched even 30% to 50% or more per year, during the nineties.
On the other extreme, in remote rural areas where there was no
chance of any development and hardly any buyers, the prices
stagnated for years or rose marginally at a nominal rate of 1% or 2%
per annum. There is thus a significant difference in increases in
market value of lands in urban/semi-urban areas and increases in
market value of lands in the rural areas. Therefore if the increase in
market value in urban/semi-urban areas is about 10% to 15% per
annum, the corresponding increases in rural areas would at best be
only around half of it, that is about 5% to 7.5% per annum. This rule
of thumb refers to the general trend in the nineties, to be adopted in
the absence of clear and specific evidence relating to increase in
prices. Where there are special reasons for applying a higher rate of
increase, or any specific evidence relating to the actual increase in
prices, then the increase to be applied would depend upon the same.
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12. Normally, recourse is taken to the mode of determining the
market value by providing appropriate escalation over the proved
market value of nearby lands in previous years (as evidenced by sale
transactions or acquisition), where there is no evidence of any
contemporaneous sale transactions or acquisitions of comparable
lands in the neighbourhood. The said method is reasonably safe
where the relied-on-sale transactions/acquisitions precedes the subject
acquisition by only a few years, that is upto four to five years.
Beyond that it may be unsafe, even if it relates to a neighbouring
land. What may be a reliable standard if the gap is only a few years,
may become unsafe and unreliable standard where the gap is larger.
For example, for determining the market value of a land acquired in
1992, adopting the annual increase method with reference to a sale or
acquisition in 1970 or 1980 may have many pitfalls. This is because,
over the course of years, the `rate' of annual increase may itself
undergo drastic change apart from the likelihood of occurrence of
varying periods of stagnation in prices or sudden spurts in prices
affecting the very standard of increase.
13. Much more unsafe is the recent trend to determine the market
value of acquired lands with reference to future sale transactions or
acquisitions. To illustrate, if the market value of a land acquired in
1992 has to be determined and if there are no sale
transactions/acquisitions of 1991 or 1992 (prior to the date of
preliminary notification), the statistics relating to sales/acquisitions in
future, say of the years 1994-95 or 1995-96 are taken as the base price
and the market value in 1992 is worked back by making deductions at
the rate of 10% to 15% per annum. How far is this safe? One of the
fundamental principles of valuation is that the transactions
subsequent to the acquisition should be ignored for determining the
market value of acquired lands, as the very acquisition and the
consequential development would accelerate the overall development
of the surrounding areas resulting in a sudden or steep spurt in the
prices. Let us illustrate. Let us assume there was no development
activity in a particular area. The appreciation in market price in such
area would be slow and minimal. But if some lands in that area are
acquired for a residential/commercial/industrial layout, there will be
all round development and improvement in the infrastructure/
amenities/facilities in the next one or two years, as a result of which
the surrounding lands will become more valuable. Even if there is no
actual improvement in infrastructure, the potential and possibility of
improvement on account of the proposed residential/commercial/
industrial layout will result in a higher rate of escalation in prices. As
a result, if the annual increase in market value was around 10% per
annum before the acquisition, the annual increase of market value of
lands in the areas neighbouring the acquired land, will become much
more, say 20% to 30%, or even more on account of the
development/proposed development. Therefore, if the percentage to
be added with reference to previous acquisitions/sale transactions is
10% per annum, the percentage to be deducted to arrive at a market
value with reference to future acquisitions/sale transactions should
not be 10% per annum, but much more. The percentage of standard
increase becomes unreliable. Courts should therefore avoid
determination of market value with reference to subsequent/future
transactions. Even if it becomes inevitable, there should be greater
caution in applying the prices fetched for transactions in future. Be
that as it may.
14. In this case, the acquisition was in a rural area. There was no
evidence of any out-of-ordinary developments or increases in prices
in the area. We are of the view that providing an escalation of 7.5%
per annum over the 1987 price under Ex.15, would be sufficient and
appropriate to arrive at the market value of acquired lands.
Whether the increase should be at a cumulative rate or a flat rate?
15. The increase in market value is calculated with reference to the
market value during the immediate preceding year. When market
value is sought to be ascertained with reference to a transaction which
took place some years before the acquisition, the method adopted is to
calculate the year to year increase. As the percentage of increase is
always with reference to the previous year's market value, the
appropriate method is to calculate the increase cumulatively and not
applying a flat rate. The difference between the two methods is shown
by the following illustration (with reference to a 10% increase over a
basic price of Rs.10/- per sq.m):
Year By flat rate increase method By cumulative increase
method
1987 10.00 10.00
(Base Year)
1988 10 + 1= 11.00 10.00 + 1.00 = 11.00
1989 11 + 1= 12.00 11.00 + 1.10= 12.10
1990 12 + 1= 13.00 12.10 + 1.21= 13.31
1991 13 + 1= 14.00 13.31 + 1.33 = 14.64
1992 14 + 1= 15.00 14.64 + 1.46 = 16.10
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16. We may also point out that application of a flat rate will lead to
anomalous results. This may be demonstrated with further reference
to the above illustration. In regard to the sale transaction in 1987,
where the price was Rs.10 per sq.m, if the annual increase to be
applied is a flat rate of 10%, the increase will be Rs.1 per annum
during each of the five years 1988, 1989, 1990, 1991 and 1992. If the
price increase is to be determined with reference to sale transaction of
the year 1989 when the price was Rs.12 per sq.m, the flat rate
increase will be Rs.1.20 per annum, for the years 1990, 1991 and
1992. If the price increase is determined with reference to a sale
transaction of the year 1990 when the price was Rs.13 per sq.m, then
the flat rate increase will be Rs.1.30 per annum for the years 1991 and
1992. It will thus be seen that even if the percentage of increase is
constant, the application of a flat rate leads to different amounts being
added depending upon the market value in the base year. On the other
hand, the cumulative rate method will lead to consistency and more
realistic results. Whether the base price is Rs.10/- or Rs.12/10 or
Rs.13/31, the increase will lead to the same result. The logical,
practical and appropriate method is therefore to apply the increase
cumulatively and not at a flat rate.
For what period, the increase should be calculated?
17. The reference court has stated that the gap between 6.1.1987
(the date of transaction covered by Ex.P15) and 15.9.1992 (the date
of acquisition under consideration) was six and half years. It therefore
calculated the increase for six and half years. This is obviously
erroneous. The actual gap is five years and eight months and not six
and half years. However, for the purpose of calculation, we have to
exclude the year of the relied-upon transaction, which is the base
year. If the year of relied-upon transaction in 1987, the increase is
applied not from 1987 itself but only from the next year which is
1988. If the rate was Rs.10 per sq.m. in 1987, and the cumulative rate
of increase is 7.5% per year, the price will be Rs.10.75 in 1988,
Rs.11.56 in 1989, Rs.12.42 in 1990, Rs.13.35 in 1991 and Rs.14.35 in
1992. Thus the calculation of increase is only for five years and not
for six and half years.
What should be the market value of the acquired land?
18. By applying a cumulative rate of escalation of 7.5% over the
market price of Rs.10 per sq.m in 1987, we find that the market value
in the year 1992 was Rs.14.35. The Reference Court and High Court
had deducted Rs.2/- towards distance factor. As the lands are
similarly situated and are in adjoining villages, it will be sufficient to
deduct Rs.1.35 per sq.m. instead of Rs.2/-. We accordingly determine
the market value as Rs.13/- per sq. m.
Interest :
19. Subsequent to the decision of the High Court, a Constitution
Bench of this Court in Sunder v. Union of India [2001 (7) SCC 211],
held that the `amount awarded' for the purpose of interest will include
not only the market value but also the additional amount under
section 23(1A) and solatium under section 23(2) of the Act. In Patel
Joitaram Kalidas & Ors. V. Special Land Acquisition Officer and
Anr. LAO 2007 (2) SCC 341, this Court held that the calculation of
interest on the additional amount under section 23(1A) and 23(2) is
automatic and consequential, even in the absence of any specific
appeal by the claimants in respect of non-grant of such interest. At all
events, as we are reducing the compensation from Rs.17.10 to Rs.13
per sq. meter, the claimants are entitled to support and sustain the
award for the higher amount as per the decision of reference court and
High Court on other factors.
Conclusion :
20. We accordingly allow these appeals in part and make the
following modification to the award made by the Reference Court
confirmed by the High Court: The claimants/respondents will be
entitled to compensation at the rate of Rs.13/- per sq. m. with
additional amount under section 23(1A) and solatium under section
23(2) as awarded. The respondents-claimants will be entitled to
interest at the rates awarded by the reference court (9% per annum for
one year and 15 per cent per annum thereafter) on the total
compensation amount including additional amount under section 23
(1A) and solatium under section 23(2). Parties to bear their respective
costs.
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