RFA/227/2009 on 24 November 2017

1. RFA No. 52 of 2009 Dandu Ram (deceased) through LRs

…Appellants.

Versus

The Collector, Land Acquisition, HPPWD ...Respondents.

2. RFA No. 219 of 2009 State of H.P. & others

…Appellants.

Versus

Dandu Ram (deceased) through LRs ...Respondents.

3. RFA No. 220 of 2009 State of H.P. & others

…Appellants.

Versus

Sh.Rawan & another

...Respondents.

4. RFA No. 221 of 2009 The Collector Land Acquisition, HP PWD …Appellants.

Versus

Saig Ram (deceased) through LRs ...Respondents.

5. RFA No. 222 of 2009 State of H.P. & others

…Appellants.

Versus

Smt.Kashmiri Devi & others

...Respondents.

6. RFA No. 223 of 2009 State of H.P. & others

…Appellants.

Versus

Sh.Nathu Ram

...Respondent.

7. RFA No. 224 of 2009 State of H.P. & others

…Appellants.

Versus

Smt.Brahami Devi

...Respondent.

8. RFA No. 225 of 2009 State of H.P. & others

…Appellants.

Versus

Sh.Gianu & others

...Respondents.

9. RFA No. 226 of 2009 State of H.P. & others

…Appellants.

Versus

Sh.Sagar

...Respondent.

10. RFA No. 227 of 2009 The Collector Land Acquisition, HP PWD …Appellants.

Versus

Khazana (Deceased) through LRs ...Respondents.

11. RFA No. 228 of 2009 State of H.P. & others

…Appellants.

Versus

Sh.Gian Chand

...Respondent.

Coram:

The Hon’ble Mr. Justice Sanjay Karol, Acting Chief Justice.

Whether approved for reporting?1No.

For the Appellants: Mr.Sanjeev Kuthiala, Advocate, for the appellant(s), in RFA No.52 of 2009.

Mr.Shrawan Dogra, Advocate General, with Mr.R.S. Verma, Addl. AG., for the appellants-State, in RFA Nos.219 of 2009 to 228 of 2009.

For the Respondents: Mr.Shrawan Dogra, Advocate General, with Mr.R.S. Verma, Addl. AG., for the respondents-State, in RFA No.52 of 2009.

M/s Sanjeev Kuthiala, Neel Kamal Sharma, Surinder Saklani & Pankaj Sharma, Advocates, for the respective respondents in RFA Nos.219 of 2009 to 228 of 2009

1 Whether reporters of the local papers may be allowed to see the judgment?

Sanjay Karol, Acting Chief Justice.

The amount involved in these appeals is not substantial. Also claimants are more and individually, each one of them would be entitled to meager amount, for the extent of their land is small.

2. For a public purpose, namely construction of Nabahi-Chamayanu-Gopalpur road, proceedings for acquisition were initiated by the State under the provisions of Land Acquisition Act, 1894 (hereinafter referred to as the Act). Notification under Section 4 of the Act, was published in the Gazette on 10.02.1996. Collector, Land Acquisition passed Award dated 06.10.1997 with respect to the acquired land. It is not in dispute that possession of the land was taken prior to initiation of acquisition proceedings. Extent of total land acquired is 0-60-86 hectares. With respect to category Dhani Abbal, Collector, Land Acquisition determined the market value to be `2,74,990/- per hectare; Dhani Dom `2,29,504/0 per hectare; Barani Abbal `1,61,373/- per hectare; Barani Dom `1,29,432/- per hectare; and with respect to Kharatar/Banjar Kadeem `31,041 per hectare. On the basis thereof, Collector awarded compensation in the following terms:-

“The amount of compensation finally determined and awarded for the land as under:-

1. Value of land

Rs.68,085-00

2. 30% C.A. charges.

Rs.20,600-00

3. 12% addl. Compensation U/s 23(I-A) w.e.f. 8.3.96 to 30.9.97

Rs.12,940-00

4. Interest U/s-34 w.e.f. 1.11.85 to 30.9.97

Rs.92,394-00

-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.

Total

Rs.1,94,619-00

.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-.-. (Rupees One lac ninety four thousand six hundred nineteen) only.”

3. Aggrieved thereof, claimants filed petitions under Section 18 of the Act, seeking enhancement of the amount of compensation. In terms of the impugned Award dated 29.11.2008, passed by Presiding Officer, Fast Track Court, Mandi, H.P., in Reference Petition No.43 of 2002, titled as Dandu Ram vs. The Collector, Land Acquisition HPPWD, Mandi & another, alongwith other connected reference petitions, Court below re-determined the market value of the land and awarded compensation with respect to the land / superstructure / trees in the following terms:- “In view of the findings on the above issues, all the petitions are hereby allowed and the petitioners are entitled to the market value of the acquired land at the rate of Rs.1,00,000/- per bigha. The petitioners are also

entitled to additional compensation Under Section 23(I-A) of the Act at the rate of 12% per annum of the awarded enhanced amount of compensation from the date of publication of notification Under Section 4 of the Act to the date of the award of the Land Acquisition Collector or to the date of taking possession of the lands whichever is earlier. The petitioners are also entitled to 30% solatium Under Section 23(2) of the Act on such enhanced amount of compensation in consideration of the compulsory nature of the acquisition. Further the petitioners are entitled to interest at the rate of 9% for one year from the date the Collector took the possession of the acquired lands and thereafter at the rate of 15% per annum till payment. The Land Acquisition Collector is directed to assess the enhanced amount of compensation in the manner stated above in consonance with the provisions of the Land Acquisition Act.”

4. Aggrieved by the said Awards both the State and one of the claimants filed the instant appeals.

5. Challenge by the State is on the ground that Court below re-determined the market value on the higher side.

6. What weighed with the Reference Court was exemplar sale deed dated 17.04.1995 (Ex.PW.5/A) of Mohal Nabahi. In terms of the said sale deed, the sale price comes out to be approximately `10,000/- per biswa, which is `2,00,000/- per bigha.

7. Now, when one peruses the evidence led by the claimants, one finds them to have placed on record several exemplar sale deeds, which stand proved by producing more than 12 witnesses, but what is important is the ocular evidence establishing the exemplar sale deeds relied upon by the Court below to be that of adjoining Mohal, where the land is identical, similar and could be put to similar use. As such, reliance on the same, is totally within the settled principles of law.

8. It is a matter of fact that the entire land was put to public purpose. Canal stood constructed thereupon. It was used for only one purpose and as such there cannot be any error in uniform determination of the market value of the acquired land.

9. The Apex Court in Haridwar Development Authority vs. Raghubir Singh & others, (2010) 11 SCC 581 has upheld the award of compensation on uniform rates. Also, it has acknowledged the principle of providing increase in the market value up to 10% to 12% per year for the land situated near urban areas having potential for non-agricultural development.

10. In Union of India vs. Harinder Pal Singh and others 2005(12) SCC 564, while determining the compensation for acquisition of land pertaining to five different villages, the apex Court uniformly awarded a sum of `40,000/- per acre, irrespective of the classification and the category of the land.

11. Further, in Nelson Fernades vs. Special Land Acquisition Officer 2007(9) SCC 447, while dealing with the case where the land was acquired for laying a Railway line, the Court held that no deduction by way of development charges, was permissible as there was no question of any development thereof.

12. The market value of a property for the purposes of Section 23 of the Act is the price at which the property changes hands from a willing seller to a willing purchaser, but not too anxious a buyer, dealing at arms length. Prices fetched for similar lands with similar advantages and potentialities under bona fide transactions of sale at or about the time of the preliminary notification are the usual and, indeed the best evidences of market value. {Mehta Ravindrarai Ajitrai (Deceased) through his Heirs and LRs. and Others

v. State of Gujarat (1989) 4 SCC 250, Nelson Fernandes & Ors. v. Special Land Acquisition Officer, South Goa & Ors. (2007) 9 SCC 447}.

13. The market value is the price that a willing purchaser would pay to a willing seller for the property having due regard to its existing conditions with all its existing advantages and its potential possibilities when led out in most advantageous manner, excluding any advantage due to carrying out of the scheme for which the property is compulsorily acquired. In considering market value disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded. The question whether a land has potential value or not, is primarily one of the facts depending upon its condition, situation, user to which it is put or is reasonably capable of being put and proximity to residential, commercial or industrial areas or institutions. The existing amenities like, water, electricity, possibility of their further extension, whether near about Town is developing or has prospect of development have to be taken into consideration. (Atma Singh and others v. State of Haryana and another (2008) 2 SCC 568).

14. The most reliable way to determine the value is to rely on the instances of sale portions of the same land as has been acquired or adjacent lands made shortly before or after the Section 4 Notification. {Panna Lal Ghosh & Ors. v. Land Acquisition Collector & Ors. (2004) 1 SCC 467}

15. If there is evidence or an admission on behalf of the claimants as to the market value commanded by the acquired land itself, the need to travel beyond the boundary of the acquired land is obviated. Instances of sale in respect of the similar land situated in the same village and/or neighbouring villages could be taken to be a guiding factors for determination of market value. {Shakuntalabai (Smt.) & Ors. v. State of Maharashtra (1996) 2 SCC 152, ONGC Limited v. Sendhabhai Vastram Patel & Ors. (2005) 6 SCC 454}.

16. In Union of India v. Pramod Gupta (Dead) by LRs. & Ors. [(2005) 12 SCC 1], the Apex Court held that the best method, as is well-known, would be the amount which a willing purchaser would pay to the owner of the land. In absence of any direct evidence, the court, however, may take recourse to various other known

methods. Evidence admissible therefor inter alia would be the sale deeds, judgments and awards passed in respect of acquisitions of lands made in the same village and/or neighbouring villages. Such a judgment/award in the absence of any other evidence like deed of sale, report of the expert and other relevant evidence would have only evidentiary value.

17. In Suresh Kumar v. Town Improvement Trust, Bhopal [(1989) 2 SCC 329], the Apex Court has held that while determining the market value of the land acquired, it has to be correctly determined and paid so that there is neither unjust enrichment on the part of the acquirer nor undue deprivation on the part of the owner.

18. This Court, in Gulabi and etc. vs. State of H.P. AIR 1998 HP 9, where the land was acquired for the purpose of construction of National Highway-21, held that the claimants would be entitled to compensation uniformly for all classes of land, irrespective of its classification or quality. I am conscious that the facts are different in the instant case and the principle laid down therein cannot be applied stricto sensu. But however, this principle was followed and accepted by this Court in H.P.

Housing Board vs. Ram Lal & Ors. 2003(3), Shim. L. C. 64, wherein the land was acquired for the purposes of setting up of a Housing Colony by the respondent authority itself. The Court held that

“27. When the land is being developed for a housing colony, as in the present case, classification completely looses significance. Reason being that it has to be developed as a single unit i.e. for housing colony. Similarly allowing higher price for land near the road and for the one which is at a distance from the road also does not provide any reasonable, muchless rational basis to allow less price for the area. Reason being that a person may be interested to reside near the road side in a developed colony for so may reasons. Whereas another, may like to live in the vicinity which is away from the road to avoid husble and bustle of being near the roadside and for many other reasons. In these circumstances it cannot be said that location of the land and its distance from the road is a good criteria and/ or for that matter classification for the assessment of compensation. In my view entire land under acquisition should have been assessed at Rs.200 per sq. meter irrespective of its classification and/ or distance from the road.”

28. Faced with this situation, Mr. Deepak Gupta, Advocate, on behalf of Housing Board submitted, that it is matter of common knowledge that plots situated on the roadside carry higher price, as

compared to the plots which are away from the road. This argument cannot be accepted in view of the decision of the Supreme Court reported in the case of Land Acquisition Officer Revenue Divisional Officer, Chittor v. L. Kamlamma (Smt.) Dead by LRs and others K. Krishnamachari and others, (1998) 2 SCC 385. What was held and is relevant was as under:- “7. The argument advanced by Shri Nageswara Rao that the classification by the Land Acquisition Officer was in order and ought not to have been interfered with by the reference court or the High Court does not appeal to us. When a land is acquired which has the potentiality of being developed into an urban land, merely because some portion of it abuts the main road, higher rate of compensation should be paid while in respect of the lands on the interior side it should be at lower rate may not stand to reason because when sites are formed those abutting the main road may have its advantages as well as disadvantages. Many a discerning customer may prefer to stay in the interior and far away from the main road and may be willing to pay a reasonably higher price for that site. One cannot rely on the mere possibility so as to indulge in a meticulous exercise of classification of the land as was done by the Land Acquisition Officer when the entire land was acquired in one block and, therefore, classification of the same into different categories does not stand to reason.”

19. This judgment has attained finality as SLP (Civil) No. 15674-15675 of 2004 titled as Himachal Pradesh Housing Board vs. Ram Lal (D) by LRs & Others, filed by the H.P. Housing Board was dismissed by the Apex Court on 16.8.2004.

20. This judgment was subsequently referred to and relied upon by a Coordinate Bench of this Court in Executive Engineer & Anr. vs. Dilla Ram {Latest HLJ 2008 HP 1007} and relying upon the decision of the Apex Court in Harinder Pal Singh (supra), wherein the market value of the land under acquisition situated in five different villages was assessed uniformly, irrespective of its nature and quality, also awarded compensation on uniform rates.

21. Insofar as the claim of the claimants with regard to the fruit trees and retaining wall is concerned, one finds that the Court below has erred in not correctly appreciating the evidence and adjudicating the claim, in accordance with law. Claimant Dandu Ram had proved on record valuation of the trees and damage caused inter alia to the retaining wall. This is in terms of the report (Ex.PW.1/A) and revenue records (Ex.PW.3/A & Ex.PW.3/B). More than 20-25 plants of different varieties were found on the land in addition to the

superstructure for which no compensation stands paid. As such, in terms of the report (Ex.PW.1/A), claimant Dandu Ram is entitled to such compensation i.e. `24,807/- for the fruit bearing trees.

22. Mr.Sanjeev Kuthiala, learned counsel, further argues that no compensation stands awarded for the land, which was used by the beneficiary without acquiring the same. Well in these proceedings, more so, in the absence of any specific evidence to such effect, as also on account of jurisdictional issue, such claim cannot be adjudicated upon.

However, liberty is reserved to such land owners/claimants to independently take recourse to such remedies as may be available, in accordance with law, for which limitation shall not come in their way.

23. As such, impugned award dated 29.11.2008, passed by Presiding Officer, Fast Track Court, Mandi, H.P., in Reference Petition No.43 of 2002, titled as Dandu Ram vs. The Collector, Land Acquisition HPPWD, Mandi & another, alongwith other connected matters, is modified. Accordingly claimants shall be entitled to the enhanced amount of compensation. Interest thereupon, shall be in terms of Award passed by the Court below.

With the aforesaid observations, appeal filed by claimant Dandu Ram being RFA No.52 of 2009, is allowed to the aforesaid extent. Also the appeals filed by the State/beneficiaries stand dismissed, so also, pending application(s), if any.

(Sanjay Karol),

Acting Chief Justice. November 24, 2017

(Purohit)