IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R. F. A. No. 96 of 2005 along with RFAs No. 97 and 98 of 2005. Judgment reserved on : 7.7.2009 Date of decision : July 23, 2009. [ For title : See over-leaf ] Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant(s) : Mr. Rajesh Verma, Advocate, Vice Mr. K.B.Khajuria, Advocate. (in all RFAs). For the Respondents : Mr. A.K.Bansal, Additional Advocate General with Mr. R.P.Singh, Asstt. Advocate General. Kuldip Singh , Judge This judgment shall dispose of RFA No. 96 of 2005, RFA No. 97 of 2005 and RFA No. 98 of 2005 arising out of common award dated 27.11.2004 passed by the District Judge, Bilaspur in land reference petition Nos. 43 of 2001, 42 of 2001 and 41 of 2001, respectively. 2. The facts in brief are that Himachal Pradesh Public Works Department issued notification under Section 4 of the Land 1 Whether reporters of Local Papers may be allowed to see the Judgment ?.yes 2 Acquisition Act, 1894 (for short ‘Act’) for acquisition of land for public purpose for construction of Bilaspur – Kotlu Sunhani link road in village Duhak, Tehsil Ghumarwin, District Bilaspur, H.P. The notification under Section 4 of the Act was published in the gazette on 1.5.1993. The Collector announced the award on 19.1.1994. The Collector determined the market value of the acquired land as per classification of the land as follows:- (i) Kohli Doam Rs. 24,202.40 per bigha (ii) Anderli Awal Rs. 21,747.00 - do - (iii) Anderli Doam Rs. 18,590.20 - do - (iv) Bahrli Awal Rs. 8,769.00 - do – (v) Banjar Khadyater Rs. 2,104.60 - do (vi) Bahrli Doam Rs. 5,612.20 -do- The Collector has also awarded amount for fruit and non-fruit bearing trees , solatium and additional compensation at the rate of 12%. 3. The land owners were not satisfied with the market value assessed by the Collector, therefore, they filed reference petitions under Section 18 of the Act. They pleaded that the market value assessed by the Collector of the acquired land is on the lower side. They have disputed the number of trees and the rate awarded for the trees, 12% additional compensation was claimed from the year 1977 when possession was taken. Interest on solatium and additional compensation was also claimed. The respondents contested the reference petitions and submitted that the Collector had awarded just and equitable compensation and prayed for dismissal of the reference petitions. 3 4. On the pleadings of the parties, the following common issue was framed by the District Judge in all the three reference petitions:- “Whether the petitioner is entitled for enhanced compensation? …OPP. The reference petitions No. 41 of 2001, 42 of 2001 and 43 of 2001 were consolidated vide order dated 3.9.2002 passed in land reference petition No. 41 of 2001. 5. The District Judge vide common award dated 27.11.2004 answered all the three reference petitions. The District Judge has held that the appellants are entitled to interest at the rate of 6% per annum from the date of dispossession till the date of payment on the solatium granted by the Collector. The interest under Section 28 is also payable from the date of issuance of notification under Section 4 of the Act and not prior to that date. The appellants are not entitled to interest awarded prior to issuance of the notification including on solatium. In case the amount has already been paid, it is for the State Government to consider the question of its realization, in case any amount is payable to the appellants as per the calculation made as per the impugned award, the said amount paid in excess shall be liable to be deducted. The District Judge held that aforesaid issue is decided partly in favour of the appellants and partly in favour of the respondents and it is for the Land Acquisition Collector to consider if any amount is payable to appellants. 4 6. Heard and perused the record. 7. PW-1 Chandu Ram has stated that his land was acquired for construction of Kotlu – Sunhani road on which the work was started in the year 1979 by Public Works Department. The land measuring 7 biswas owned by him was acquired. Land measuring 1-16 bigha of Paras Ram of village Duhak was also acquired, likewise land measuring one bigha of Amin Chand etc. was acquired. Interest in the form of additional compensation and compulsory acquisition charges were not given to them from 1979. The compensation for the land was given on the lower side. At that time, the market value of their land was not less than Rs.10,000/- per biswa. In adjacent village Berthin, H.P.State Co-operative Bank had purchased two biswas land from Krishnu for Rs.20,000/-. At the same rate, Janki Devi had sold two biswas land for Rs.20,000/-. These deeds were registered on 13.11.1991 and 5.2.1991. The village Berthin and Duhak are adjacent villages. In cross- examination, he has stated that nobody had purchased land in their village at Rs.10,000/- per biswa. The village Berthin is having 100 shops and is at a distance of 1 ½ KM from their village. There are 4 – 5 shops in their village. 8. PW-2 Jai Kishan Sharma, Branch Manager, H.P.State Co-operative Bank Ltd., Berthin has stated that bank has its own building at Berthin and land measuring 2 biswas was purchased by the bank from Krishnu for Rs.20,000/- vide sale deed dated 14.11.1991 Ex.PW-2/A. In cross-examination, he has stated that the land on which the building of the bank was constructed is in the centre of bazaar. PW-3 Surinder Kumar is the vendee of sale deed 5 Ex.PW-3/A vide which he had purchased 2 biswas land from Janki for Rs.20,000/- vide sale deed Ex.PW-3/A dated 5.1.1991. In crosss-examination, he has stated that he had constructed his shop on the land after purchase which is in the centre of the bazaar. The distance in between Berthin and Duhak is 1 ½ km. PW-4 Dalip Singh, Work Inspector, PWD Sub Division, Berthin has proved the muster-roll Ex.PW-4/A and Ex.PW-4/B with respect to work on Kotlu – Sunhani road. PW-5 Om Parkash, Patwari, Patwar Circle, Sunhani has stated that villages Duhak and Berthin fall in his Patwar Circle. He has stated that villages Mohwin, Bhatoli, Guwan and Berthin are adjoining villages. Village Duhak is adjoining to village Mohwin. He has proved certificate Ex.PX regarding the boundaries of villages. In cross-examination, he has admitted that Sunhani is adjoining village of village Duhak. The District Attorney has tendered in evidence Ex.RA, copy of sale deed and closed the evidence. 9. The notification under Section 4 of the Act was published in the gazette on 1.5.1993, therefore sale transactions around 1.5.1993 are relevant for assessing the market value of the acquired land. The sale deed Ex.RA dated 20.6.1987 is of mouza Sunhani vide which Ram Lal had sold 12 biswa of land to Rameshwar Kaushal for Rs.500/-. It has been stated in Ex.RA that vendee is the son of vendor. The time gap in between Ex.RA sale deed and the notification under Section 4 of the Act is about of six years. The sale deed Ex.RA is in between father and son, therefore, Ex.RA cannot be relied for determining the market value of the acquired land. 6 10. The sale deed Ex.PW-3/A dated 5.2.1991 is in between Janki Devi and Surinder Pal vide which the vendor had sold two biswas land for Rs.20,000/- in mouza Berthin. Krishnu on 13.11.1991 vide sale deed Ex.PW-2/A had sold two biswas land in mouza Berthin to H.P.State Co-operative Bank Ltd, Berthin. Ex.PX is the certificate issued by the Patwari, Patwar Circle, Sunhani certifying that some villages including Berthin and Duhak have common boundaries. PW-1 Chandu Ram has stated that village Berthin is adjacent to village Duhak. The parties have not placed on record sale transactions of the relevant period of village Duhak where the land has been acquired. In absence of sale transactions of village Duhak, the sale transactions of relevant period of adjacent villages become relevant. The sale deed Ex.PW-3/A is dated 5.2.1991 and sale deed Ex.PW-2/A is dated 13.11.1991 and both of them are proximate in time in relation to date of publication of notification under Section 4 of the Act in gazette on 1.5.1993, therefore, sale deeds Ex.PW-3/A and Ex.PW-2/A become relevant for determination of the market value of the acquired land. 11. As per sale deed Ex.PW-3/A the market value comes to Rs. 10,000/- per biswa, similarly as per sale deed Ex.PW-2/A the market value comes to Rs.10,000/- per biswa. The vendee had purchased land vide sale deed Ex.PW-3/A for construction of shop and the vendee of sale deed of Ex.PW-2/A had purchased the land for construction of bank building. The distance between villages Berthin and Duhak is about 1 ½ km. The village Berthin appears to be better developed in comparison to village Duhak. In these circumstances, it can be safely inferred that value of the land in 7 village Berthin is more in comparison to village Duhak. In Krishna Yachendra Bahadurvaru Vs. The Special Land Acquisition Officer, City Improvement Trust Board, Bangalore and others AIR 1979 SC 869, it has been held that estimation of market value in many cases must depend largely on evaluation of many imponderables and hence it must necessarily be to some extent a matter of conjecture or guess. 12. In RFA No. 98 of 2005 one bigha land is involved, in RFA No. 96 of 2005 1-16 bighas land is involved and in RFA No. 97 of 2005 0-7 biswa land is involved. The total land in three appeals comes to 3 bigha 3 biswa. The acquired land is large area in comparison to land sold by each sale deed Ex.PW-3/A and Ex.PW- 2/A vide which two biswas each were sold. In H.P.Housing Board vs. Bharat S. Negi and others (2004) 2 SCC 184, in the context of small area and large area, the Supreme Court has allowed the deduction of 33 1/3%. Therefore, after allowing 33 1/3% deduction the value of land on the basis of sale deeds Ex.PW-3/A and Ex.PW-2/A, comes to Rs. 6700/- (10000 – 3300) per biswa. The distance between Berthin and Duhak is 1 ½ km. Therefore in order to determine the market value of acquired land in village Duhak which is less developed in comparison to village Berthin from the market value so determined further deduction of 50% can be safely made. Thus, market value of land in village Duhak comes to Rs.6700 x 1 / 2 = Rs.3350 per biswa or Rs. 67,000/- per bigha. The land was acquired for construction of road, therefore, appellants are entitled to uniform rate of Rs.67,000/- per bigha irrespective of the classification of land. 8 13. On the market value of Rs. 67,000/- per bigha, the appellants are entitled to 12% amount under Section 23 (1-A) from 1.5.1993 date of publication of notification under Section 4 of the Act to 19.1.1994 date of award made by the Collector. The appellants are also entitled to 30% solatium under Section 23(2) on the market value so determined. On the enhanced amount of compensation, the appellants are entitled to interest at the rate of 9% per annum from 1.5.1993 date of publication of the notification under Section 4 of the Act for one year and thereafter at the rate of 15% per annum till payment. The District Judge has not properly appreciated the material on record and, therefore, impugned award in each appeal is liable to be modified. 14. No other point was urged. 15. The result of the above discussion, all appeals being RFA No. 96 of 2005, RFA No. 97 of 2005 and RFA No. 98 of 2005 are allowed. The common award dated 27.11.2004 passed by the District Judge, Bilaspur in land reference petitions No. 43 of 2001, 42 of 2001 and 41 of 2001 is modified. It has been held that appellants are entitled to market value of the acquired land at Rs.67,000/- per bigha along with 12% amount under Section 23(1-A) from 1.5.1993 date of publication of notification under Section 4 of the Act to 19.1.1994 date of award made by the Collector. The appellants are also entitled to 30% solatium under Section 23(2) on the market value so determined. On the enhanced amount of compensation, the appellants are entitled to interest at the rate of 9% per annum from 1.5.1993 the date of publication of the 9 notification under Section 4 of the Act for one year and thereafter at the rate of 15% per annum till payment. No costs. ( Kuldip Singh ), Judge. July 23, 2009. (GR) 10 R.F.A. No. 96 of 2005 Paras Ram ..Appellant. Vs L.A.C. and another …Respondents. RFA. No. 97 of 2005 Chandu Ram …Appellant. Vs. L.A.C. and another …Respondents. RFA No. 98 of 2005 Amin Chand and another …Appellants. Vs. L.A.C. and another …Respondents.