IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 343 of 2004 Reserved on : 19.6.2009 Date of decision: 17.7.2009 State of H.P. & Anr. ……………Appellants Versus Amar Singh & Ors. ……………Respondents Coram The Hon’ble Mr.Justice V.K. Ahuja, J. Whether approved for reporting?1Yes For the appellants : Ms. Shubh Mahajan, Dy. A.G. with Mr. J.S. Guleria, Assistant A.G. For the respondents : Mr. Ravinder Thakur, Advocate. V.K. Ahuja, J. This is a regular first appeal, under Section 54 of the Land Acquisition Act, filed by the appellant/state of H.P., against award dated 22.6.2004, passed by Learned Presiding Officer (Additional District Judge) Fast Track Court, Solan, District Solan, H.P. Briefly stated the facts of the case are that the land of the respondent measuring 5 bighas 3 biswas was acquired out of total land measuring 17 bighas 5 biswas situated in mauja Tiyukari, Tehsil and District Solan for construction of Bill Haripur road. Notification under Section 4 of Land Acquisition Act (hereinafter 1 Whether the reporters of the local papers may be allowed to see the Judgment? 2 referred to as “Act”) was issued. The LAC entered into reference, passed the award granting compensation to the extent of Rs. 47,779/-. A reference was made to the Additional District Judge under Section 18 of the “Act” and the trial Court vide its impugned award enhanced the compensation and granted in all a sum of Rs. 47,40,625/-. I have heard the learned counsel for the parties. The submissions made by the learned Assistant Advocate General were that the Collector had awarded the compensation @ Rs. 7200/- per bigha, taking the land as Ghasani, while the learned trial Court granted the compensation @ Rs. 2,50000/- per bigha, taking the land as Irrigated land. It was pleaded that the compensation has been enhanced by the learned trial Court 128 times without any basis and as such, the impugned award passed by the learned trial Court is liable to be set aside. It was also submitted that there was no material for the court to come to this conclusion that the value of the land was Rs. 2,50,000/- per bigha and, therefore, the compensation awarded by the learned trial Court was too excessive. 3 The learned Assistant Advocate General in support of his submissions had relied upon the decision of the Hon’ble Apex Court in The General Manager, Oil & Natural Gas Corporation Ltd. V. Rameshbhai Jivanbhai & Anr., 2008 (11) Scale 637. This is a detailed ruling of the Hon’ble Apex Court in which it has been clearly laid down as to how the increase is to be considered, what are the factors on which this increase depends. They had laid down the four factors namely; 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. It was observed that in remote rural areas the prices stagnated for years or rose marginally at a nominal rate of 1% or 2% per annum. Thus, it was held that there is a significant difference in increases in market value of lands in urban/semi-urban areas and increase in market value of lands in the rural areas would at best be of only around half of it, i.e. about 5% to 7.5% per annum. This was considered as the basis of these prices at the time of the execution of the sale deed. This basis, therefore, helps in arriving at a correct conclusion in the present facts. 4 On the other hand, learned counsel for the respondents has submitted that the learned trial Court had considered the average price as given by the Patwari and the compensation awarded was not excessive which calls for no interference by this Court. The necessary dates which are material for just determination of the case, may be mentioned as under:- a) Date of award by Collector: 12.3.1996 b) Date of award by the trial Court: 22.6.2004 c) Rate allowed by the Collector Rs.7200/- per bigha d) Rate allowed by the trial Court Rs. 2,50,000/- per bigha. A perusal of the record shows that sale deed Ext.PW1/A was proved before the learned trial Court which has also been considered by the learned trial Court. A perusal of Ext.PW1/A sale deed shows that the sale deed was executed on 9.6.1992. Vide this sale deed 6 biswas of land situated in mauja Tiyukari, Tehsil and District Solan was sold for a total consideration of Rs. 12000/-. This leads to the inference that the average price for one biswa of land was Rs. 2000/- and the price 5 of one bigha land will come to Rs. 40,000/-. This sale deed was also referred to by the learned trial Court in para-10 of its judgment. However, the learned trial Court observed that there is statement of PW1 Tulsi Ram, President of Gram Panchayat that the market value of this land in the year 1992 was between Rs. 2 and 2.5 lacs per bigha. The oral statement made by a witness in regard to the price of the sale deed at the relevant time cannot be considered and therefore, had to be ignored. The learned trial Court had also referred to the testimony of PW2 Vinod Kumar, Patwari who had proved the average price as Rs. 2,25,600/- and it was observed that the value of Ghasni land of this mauja during the year 1991-92 was Rs. 7200/- per bigha. The statement of this witness has to be considered whether it inspires confidence or not. PW2 Vinod Kumar Patwari has stated that he had calculated the average price and the same is Ext.PW2/A, which is correct as per the record. He admitted that in the year 1991 no sale purchase transaction took place in village Tiyukari. In regard to the sale effected in the year 1992, he stated that the sale transaction took place and accordingly he prepared the average price as given in Ext.PW2/A. It is clear from a 6 perusal of his statement that the patwari had considered one sale transaction dated 10.6.1992 in calculating the average price and the notification under Section 4 of the “Act” was issued on 11.7.1992 i.e. after some days of the execution of the sale deed. However, it is clear before issuance of the notification that the papers are prepared and the villagers are aware that a proposal has been sent for acquisition of land and, therefore, this sale transaction relied upon by learned trial Court cannot be said to be relevant. A perusal of Ext.PW2/A shows that there is no mention of the date of the sale deed, kind of the land and the average price calculated for the period 1.9.1991 to 31.8.1992 by the patwari cannot be said to be correct basis for determining the just compensation. The copy of the sale deed should have been proved on record of 10.6.1992, if any, by the petitioner. Moreover, this witness has admitted that he was not summoned by the Court and he prepared this average price at the instance of the counsel, did not issue any receipt and had come to depose in favour of the party. In my view, action should be taken against this patwari for appearing in the witness box and preparing a document at the instance of a party and it was for him to take the permission of his 7 department and then he should have appeared in the court and depose. For that purpose a copy of the judgment should be sent to the District Collector, Solan for taking action, as he deems fit, against the said patwari, Patwar Circle, Haripur, Tehsil & District Solan for appearing as a witness on 26.5.2003 without permission from the department. In case above average price calculated by the patwari is ignored, the only document on record is Ext.PW1/A, copy of the sale deed proved by the petitioner. Coming to the second finding of learned trial Court on the basis of the statement of the Assistant Engineer and others that this land was irrigated, the learned trial Court had itself observed that the kind of the land entered in the revenue record was ‘Ghasni’ which fact also stands proved from the copy of the jamabandi attached by the Collector alongwith his award which shows the land as ‘Charand’. This land ‘Charand’ is shown for the whole land measuring 17-5 bighas including the land of the respondents acquired for the purpose of construction of the road. PW3 Ramesh Chand, Additional Assistant Engineer has stated that an irrigation 8 scheme was started in this village in 1984-85 and after the scheme the whole land was being irrigated. In case the whole land was irrigated after 1984-85, the petitioner should have produced the copies of revenue record to prove that the land was now shown in the revenue record as irrigated. In cross examination this witness admitted that he is not aware as to whether the land of the petitioner was being irrigated or not and he had not seen the land. PW4 Siri Ram was the Pradhan of the committee constituted for irrigation scheme. He stated that the land of the petitioner was being irrigated since 1984-85 and has stated that the value of the land had gone to Rs. five lac per bigha but he did not support his statement from any record or any documentary evidence. He admitted that the value of the price depends upon the purchaser and the seller. PW5 Amar Singh is the son of the petitioner whose statement is not very material. From the above discussion of the evidence, it is clear that only one sale deed was proved in evidence which proved that the price of land per biswa was Rs. 2000/- or Rs. 40,000/- per bigha. Even if the price is taken as the basis for determination of the price at the time of the acquisition, the learned Additional District 9 Judge should have awarded the compensation @ Rs. 40,000/- per bigha, irrespective of the kind of land. It has not been proved on record as to the kind of the land sold vide Ex.PW1/A, this could have been the maximum price allowed by the learned trial Court for the kind of land in question and, therefore, granting compensation @ Rs. 2,50,000/- by the learned trial Court can be said to be to excessive which findings are not sustainable in the eyes of law. In view of the above discussion, I accordingly held that the findings of the learned trial Court are not sustainable and the compensation is payable to respondents @ Rs. 40,000/- per bigha alongwith consequential benefits for this grant, as granted by the learned trial Court. The appeal stands partly allowed. The compensation shall be calculated by the Collector and the balance amount payable, if any, shall be paid to the respondents, forthwith. Parties are left to bear their own costs. (V.K. Ahuja) July 17, 2009 Judge. (vs)