1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No. 74 of 2005 Date of Decision: 10th May, 2010 Defence Estate Officer, Ambala, C/o 56 A.P.O. Appellant Versus Aminder Kumar and others Respondents. Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr.Sandeep Sharma, Assistant Solicitor General of India. For respondent No.1: Mr.B.S.Kanwar, Advocate. For respondents No.2 and 3: Mr.R.M.Bisht, Dy. Advocate General. Sanjay Karol, J. (Oral) 1. Learned counsel for the parties submit that the present appeal is squarely covered by a decision of this Court in RFA No.306 of 2006 and other connected matters, decided on 20th November, 2009, titled as Union of India vs. Dhani Ram and others. 2. Learned counsel for the parties further submit that it may not be necessary to consider the evidence, material and the contentions of the parties again in this appeal when the matter is concluded by the decision of this Court in Dhani Ram (supra). 3. The decision in Dhani Ram (supra), has been based on a decision of this Court in RFA No.246 of 2004, decided on 16.12.2008, titled Whether the reporters of Local Papers are allowed to see the Judgment? 2 as Union of India vs. Joginder Singh and others, wherein it has been held as follows:- “The challenge to the impugned Award is on the ground that the Court below has determined the market value on the basis of solitary sale instance which was with respect to a small parcel of land. According to the learned Assistant Solicitor General of India, the Court below erred in basing its decision on the same particularly when otherwise there was contemporaneous material on record to justify the award passed by the Collector. Per contra, Shri Brahma Nand Sharma, learned counsel for the claimants has defended the award for the reasons set out therein. According to him, there cannot be a straight jacket formula and Sale Deed pertaining to a solitary sale instance can also be considered for determining the market value of the acquired land. The fact that the claimants land was acquired in terms of the Notification issued under the provisions of the Act is not in dispute. The extent, the location and the entitlement of the claimants is also not in dispute. It is equally true that even though large chunk of land was acquired for setting up of defence establishment but, however, individual share holding of each claimant is not very big and substantial. The increase of the amount of the market value is also not very high and is just about 10% from what was awarded by the Collector, Land Acquisition. In order to prove its case, the claimants examined Shri Gopal Dass (PW-1), Numberdar of Phati Nirmand; Shri Prabhdayal (PW-2), who sold his land in terms of Sale Deed Ext.PW-2/A, Shri Joginder Singh (PW-3) and Shri Ganga Ram (PW-4). These witnesses proved on record Sale Deed Ext.PW-2/A dated 14.9.1993 in terms of which 2 biswas of land in village Averi, was sold for a sum of Rs.6000/- (3 lakh per bigha). 3 In rebuttal, the respondents examined Shri Chain Ram (RW-1) and Shri Shyam Chand (RW-2), patwari of the Patwar Circle Nirmand. Village Averi is at a distance of 6 kms. from Rampur stands proved by PW-1. That the acquired land was put to agricultural use and the claimants used to sow maize and wheat stands proved by PW-1, PW-3 & PW-4. These witnesses have deposed that the crop sown on the acquired land was sold at Rampur, which in fact is closer from the acquired land and were having an annual income of Rs.one lac per bigha. According to the claimants, the market value of the acquired land was approximately 2½ lacs per bigha. With the acquisition of the land, as stands proved by them, there has been mass dislocation of population which has not only effected their personal life but also their businesses. The acquired land was well connected by road and having all modern facilities, such as, telephone, road, electricity, water, school and market also stands proved by PW-1. Judicial notice can be taken of the fact that Rampur, Tehsil Headqurters, is a fast going township. In and around Rampur, many Mega Power Projects have already been established and are in the process of being commissioned. The acquired land is just at a distance of 6 kms. from Rampur. PW-1 has also proved that the new power project by the name of Rampur Hydle Power Project is being constructed just at a distance of 4 kms. from Averi towards Duttnagar, which is near Rampur. Thus, the potentiality of the acquired land to be put to use other than agriculture cannot be ruled out and is in fact substantial. The Collector Land Acquisition, as stands proved by RW-2, passed the Award on the basis of the annual average market price (Ext.RW-2/A) of village Nirmand, according to which the market price of the land at Nirmand for different categories of land was ; Ropa Awal = Rs.31,464/- per bigha, Ropa Doem = Rs.27,268/- per bigha, 4 Ropa Soem = Rs.17,200/- per bigha, Bakhal Awal = Rs.18,458.88 per bigha. The same was considered as according to RW-2, five yearly average market price as also the annual average market price of village Averi was very less and could not be construed to be determinative of the true market value of the acquired land. The locational situation of village Averi from Rampur does not appear to be in dispute. RW-2 has admitted that Nirmand is just at a distance of 12 kms. from village Averi. If this was so then why the average price of village Rampur was not taken into account by the Collector, is not evident from the record. The District Judge has held that the acquired land was not irrigated and even PW-1 has admitted that the acquired land was sandy. These findings are not in dispute. Be that as it may be the fact of the matter is that the claimants have proved through oral testimony that the market value of the land in Rampur is in the vicinity of Rs.4 lacs to 5 lacs per bigha. If this is so then the average market price of village Rampur ought to have been considered by the Collector while determining the market value of the acquired land. Rampur was in fact at a shorter distance from Averi than from Nirmand. It is not that the lands at Nirmand and Averi are of same quality or that the land at Rampur is of a different quality. The position of law is evidently clear and the market value of the basic valuation register maintained for the purposes of the collection of the stamps duty cannot be relied upon while determining the market value of the acquired land. Krishi Utpadan Mandi Samiti, Sahaswan vs. Bipin Kumar {2004(2) SCC 283}. The State did not lead any evidence except for proving on record Ext.RW-2/A which was the annual average market price of the land situated in village Nirmand. 5 On the contrary, the claimants have proved on record Sale Deed Ext.PW-2/A of land, which was sold by Shri Prabhdayal (PW-2). The genuineness of the sale transaction is not in dispute which is evident from the line of cross- examination carried out by the present appellants. Therefore, the same has been rightly considered by the Court below for determining the market value of the acquired land. From the statement of PW-2, it is evident that the land covered by the exemplar Sale Deed was not of good quality and did not have any locational advantage inasmuch as it was situated near a Nallah of village Averi. The sale transaction pertains to the very same village and is proximate to the time of the acquisition. In my view, no deduction is required to be carried out for the various reasons discussed hereinabove. No doubt, the exemplar sale deed pertains to only 2 biswas of land but, however, the fact of the matter is that the individual share holding of each land holder is also not substantial.” 4. In view of the fact that the similar appeals have already been dismissed by this Court in the aforesaid terms, the present appeal is also dismissed. Cross-Objections: No.140 of 2005 5. I have perused the record carefully. There is no scope of enhancement of compensation. Therefore, the Cross-objections are dismissed. However, the claimant is entitled to all the statutory benefits and moreso as per the ratio of law laid down by the Apex Court in Sunder v. Union of India, reported in (2001) 7 SCC 211. 10th May, 2010 (Sanjay Karol) (C) Judge.