IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No.29 of 2004 with RFA Nos. 30, 32, 33, 34, 35, 36 & 37 of 2004. Date of Decision : December 2, 2008. RFA No.29 of 2004 LAC and another …Appellants. Versus: Sir Chand alias Sar Chand & Others …Respondents. RFA No.30 of 2004 LAC and another …Appellants. Versus: Ses Ram & another …Respondents. RFA No.32 of 2004 LAC and another …Appellants. Versus: Bir Singh & Others …Respondents. RFA No.33 of 2004 LAC and another …Appellants. Versus: Kedar Nath & Others …Respondents. RFA No.34 of 2004 LAC and another …Appellants. Versus: Anup Ram & another …Respondents. RFA No.35 of 2004 LAC and another …Appellants. Versus: Lal Chand & another …Respondents. RFA No.36 of 2004 LAC and another …Appellants. Versus: Hira Lal & another …Respondents. 2 RFA No.37 of 2004 LAC and another …Appellants. Versus: Amar Chand & another …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellants: Mr. R. K. Bawa, A. G. with Mr. Vivek Thakur, Addl. A.G. and Mr. Anil Jaswal, Dy. A. G. For the respondents. Mr. Sunil Mohan Goel, Advocate SANJAY KAROL, JUDGE (Oral). The present appeals arise out of a common Award dated 1.11.2003, passed by the District Judge, Kullu, H. P. in Land Reference Petition No. 22/2002 titled as Sir Chand & Others vs. Collector, Land Acquisition & another and other connected matters, and, as such, are being disposed of by a common judgment. For the public purpose, namely, construction of “Ramshila-Bijli-Mahadev road”, Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’) dated 5.6.1995 (lastly published in the Tribune on 12.7.1995) was issued by the State Government seeking to acquire the claimants land situate in Phatti Kharahal, Kothi Kais, Tehsil & District Kullu, H. P. The acquisition proceedings concluded with the passing of the Collector’s Award No.6/1997 dated 4.6.1997, whereby the market value of the acquired land 1 Whether reporters of Local Papers may be allowed to see the judgment? 3 was assessed keeping in view categories/classifications of the land. The extent of the measurement and classification as also the rates awarded by the Collector, are as under:- Sr. Kind of land Area Per bigha No. Value 1. Bathal Dom 2-1-7 38629.00 2. Bathal Som 4-12-15 19314.00 Gair mumkin 3. Bagicha Bathal 0-9-2 57944.00 The acquired land was having fully grown fruit bearing trees and the Collector deferred the awarding of the compensation, as the report from the Horticulture Department was not available. Aggrieved by the same, the claimants filed Land Reference Petitions under Section 18 of the Act seeking enhancement of the compensation awarded by the Collector. The details of the Land Reference Petitions and the respective appeals challenging the Awards passed in them are as under:- 1. Land Reference Petition No. 22/2002 titled as Sir Chand & Others vs. Collector Land Acquisition & another,(RFA No. 29/2004) 2. Land Reference Petition No. 23/2002 titled as Ses Ram & another vs. Collector, Land Acquisition & another (RFA No. 30/2004) 3. Land Reference Petition No. 26/2002 titled as Bir Singh & Others vs. Collector, Land Acquisition & another, (RFA No. 32/2004). 4 4. Land Reference Petition No. 28/2002 titled as Joge Ram (since deceased) through LRs Kedar Nath & others vs. Collector, Land Acquisition & another (RFA No.33/2004) 5. Land Reference Petition No. 29/2002 titled as Anup Ram & another vs. Collector, Land Acquisition & another (RFA No. 34/2004). 6. Land Reference Petition No. 30/2002 titled as Lal Chand & another vs. Collector, Land Acquisition & another (RFA No. 35/2004). 7. Land Reference Petition No. 31/2002 titled as Hira Lal & another vs. Collector, Land Acquisition & another(RFA No. 36/2004). 8. Land Reference Petition No. 32/2002 titled as Amar Chand & another vs. Collector, Land Acquisition & another (RFA No.37/2004) All of the Land Reference Petitions were consolidated with the Land Reference Petition No. 22/2002 by the Court Below. The following issues were framed by the Court below:- 1) Whether the petitioners are entitled of for the enhancement of compensation, as alleged, if so, what was the market value of the acquired property at the time of notification under Sec. 4 of the Land Acquisition Act? …….OPP 2) Whether the petitioners are entitled for the statutory benefits as alleged? ….OPP Opportunity to adduce evidence was afforded to the parties. Appreciating the material on record (oral and documentary), the market value of the claimants land was enhanced by the Court below to Rs. 3 lacs per bigha regardless of the classification of land. The basis for enhancement of the 5 compensation was the Collector’s Award No.9/1994 dated 26.10.1994 (Ext.P-9) and the Awards passed in the Land Reference Petitions by the District Judge being Ext.P-12, Ext.P- 14 & Ext.P-16. The present appeals have been filed by the State and no appeal or cross-objections have been filed by the claimants. I have heard the learned counsel for the parties and also perused the record. In order to prove their case, the claimants examined S/Shri Sar Chand (PW-1), Ishwar Dass (PW-2), Ses Ram (PW- 3) and Tulsi Ram (PW-4) . The claimants witnesses proved on record the Sale Deeds Ext.PW-2/A, Ext.PW-2/B & Ext.PW-2/C. The claimants also tendered in evidence copies of the Awards and the Revenue Records being Ext.P-1 to Ext.P-19/A. In rebuttal, the State examined Shri Kuldip Singh (RW-1), Patwari, who proved on record the five yearly average prices maintained by the Revenue Department being Ext.RW- 1/A. Copies of the five Sale Deeds along with the revenue records were tendered in evidence as Ext.RA to Ext.RK. Sale Deeds Ext.RA, Ext.RC, Ext.RE, Ext.RG & Ext.RJ produced by the State have been perused and, in my view, they have rightly not been relied upon by the Court below. The annual average price Ext.RW-1/A can also not be considered as the purpose of maintaining the same is different i.e. collection of stamp duty under the Registration Act. As there is nothing on record to prove the similarity of quality and potential of the 6 acquired land with that of the exemplar sale land, as such, these documents cannot be considered for determining the market value of the acquired land. There is yet another reason as to why the exemplar sale deeds cannot be accepted. There is other contemporaneous material on record, in the shape of the Collector’s Award, wherein the market value of the land acquired in the same Phatti and for the very same public purpose, is indicative of the fact that the price is much higher than the sale price of the said exemplar sale deeds. PW-1, PW-3 & PW-4 in one voice stated that their land situate in village/Phatti Kharahal is at a distance of about 200 to 300 yards from the land belonging to S/Shri Joge Ram and Dot Ram, as also the land acquired vide Award Ext.P-9. The land was acquired for construction of “Ramshila-Bijli-Mahadev road” starting from Shangri Bagh. Award Ext.P-9 (9/94 dated 26.10.1994) pertains to acquisition of land in the very same village and for the very same public purpose in the year 1991. The Collector himself determined the market value at Rs.3 lacs per bigha regardless of the category/classification of the acquired land. The locational advantage and the potentiality of land in village Kharahal was elaborately discussed by the Collector as under:- “ENQUIRY REGARDING CLAIMS & MARKET VALUE:- The interest holders have demanded market value @ 20.00 lakh per bigha for the land under 7 acquisition. In order to substantiate and support their demand, they have produced a single transaction No.1097 dated 27.6.92 according to which land comprising 0-2-0 bigha has been sold for a consideration of Rs.80,000.00 i.e. rupees 18.00 lacs per bigha. This single transaction can however not be suggestive and representative of the market value of the land under acquisition, particularly in view of the circumstances that the transaction does not recite the exact location of the land involved in this transaction from that of the acquired land. In addition, the transaction as discussed above has taken place much after the publication of notification under section 4 of the Act, hence this sale transaction is discarded. As per one year average sale price of the land value comes Rs.73.602 per bigha for Bagicha Bathal, Rs.31,796.00 per bigha for Bathal Abbal and Rs.10,589.00 per bigha for Bathal Som and Gair Mumkin kind of land. The aforesaid average value is the value of transactions taking place in the entire phati Kharahal which extends upto about four kilometers from Kullu town. The land under acquisition in this case is located near Kullu Town. Though it is situated across the river Beas. The land is separated by two bridges from Akhara Bazar Kullu, which is the main shopping and business centre of the town. Thus located, the land under acquisition has very high commercial value, since there is great potential in putting the land for construction of hotels, restaurants, shopping complexes and residential houses etc. Hence, to assess the market value of the land under acquisition an average value of the land as discussed above is not suggestive of 8 the market value of the land because of its commercial value. The average value of Bagicha Bathal is Rs.73,602/- per bigha. Since the land under acquisition has high commercial value as discussed above, the market value of the land would be at least four times more than the above mentioned average value. Thus multiplying by four, value comes to Rupees 2,94,408.00 per bigha. Considering the potentiality future possibility and aforesaid facts and circumstances a flat rate of Rs.3.00 lacs per bigha is hereby awarded in view of the fact that the whole land despite variation in classification as per revenue record has equal commercial value, since the land is hardly located at a distance of about fifty metres from Akhara Bazar,Kullu.” The similarity, the proximity and the potentiality of the acquired land with that of the aforesaid land stands proved on record. The instant land was acquired in the year 1995. Judicial notice can be taken of the fact that there has been increase in the land prices between the year 1991 and 1995. Importantly, the Collector (L.R. Chouhan) who passed both the Awards was one person. However, while passing the instant Award, there is no discussion as to on what basis and material, the market value was determined by him. Award Ext.P-12 (96/98, dated 18.9.2000) also arises out of acquisition proceedings pertaining to the year 1993 in village Kharahal itself and for the very same public purpose. In the Land Reference Petition No.96/98, the District Judge, Kullu, 9 enhanced the market value of the acquired land to Rs. 3 lacs per bigha regardless of the category/classification of the land. Similarly in Award Ext.P-16 (29/2001, dated 31.8.2002) passed by the District Judge, Kullu, in Land Reference Petition pertaining to the same public purpose, the compensation was enhanced to Rs. 3 lacs per bigha regardless of the category/classification of the land. Admittedly, this Award attained finality with the passing of the order dated 10.9.2008 in RFA No. 150 of 2003 by this Court. Award Ext.P-14 pertains to different village and as such is not referred to. In Karan Singh and another v. Union of India (1997 (8) SCC 186), the Apex Court has held that the judgments of the Courts in land acquisition cases or the awards passed by the Land Acquisition Collector can be relied upon as pieces of evidence for determining the market value of the land, if the same are admitted in evidence and there is evidence to prove the similarity of land and the other attending circumstances. Shri Sar Chand (PW-1) as also Shri Ses Ram (PW-3) have categorically deposed that the acquired land for the construction of “the National Highway-21 Kullu Bye Pass” and the land of other claimant Shri Joge Ram, covered by Award Ext.P-16, is adjoining to this land. Perusal of the records shows that the acquired land is just opposite to the Akhara Bazar, Kullu and is extremely suitable for setting-up of a Hotel due to its proximity with the 10 National Highway, as also the main Kullu Bazar. From Tourism point of view, it has great potential. There is no serious or effective cross-examination of the witnesses on this point. The potentiality, similarity, use, location and the proximity of the acquired land with that of the exemplar land stand proved. The acquisition is with respect to the same village, same public purpose and also subsequent in point in time, therefore, I see no reason as to why the same rate should not be uniformly applied and awarded to the claimants herein. The matter needs to be examined from another angle. PW-2 has proved the Sale Deeds Ext.PW-2/A, Ext.PW-2/B & Ext.PW-2/C. In terms of the Sale Deed Ext.PW-2/A, 2 biswas of land was sold for Rs.1.2 lacs, in terms of the Sale Deed Ext.PW-2/B, 3 biswas of land was sold on 27.6.1992 for Rs.1.6 lacs and in terms of the Sale Deed Ext.PW-2/C, 2½ biswas of land was sold on 9.10.1992 for Rs.1.5 lacs. The genuineness of the Sale Deeds is not in dispute. Obviously, there is increase in the prices between the year 1992 and 1995. In terms of the said exemplar Sale Deeds, the market value of the acquired land even in the year 1992 would have been Rs.12 lacs per bigha, yet the Court below has awarded only Rs.3 lacs per bigha for the acquired land. For the aforesaid reasons, I see no reason to interfere with the impugned Award. There is no illegality, 11 irregularity or impropriety in the same. The entire material has been considered in its entirety. Needless to add, the claimants shall be entitled to all statutory benefits, including interest, solatium in terms of the judgment of the Apex Court in Sunder vs. Union of India (2001(7) SCC 211). As pointed out by the learned Addl. Advocate General, I see no ambiguity in the impugned Award but, however, it is clarified that the claimants shall be entitled to all benefits, including interest only from the date of the publication of the Notification issued under Section 4 of the Act and not from 1980/88, as claimed for by the claimants. With the aforesaid observations, the appeals are dismissed. ( Sanjay Karol ), Judge. December 2, 2008. (rana)