IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No.134 of 2004 alongwith 135, 136 and 137 of 2004 Date of Decision: 15th December, 2008 RFA No. 134 of 2004 Collector, Land Acquisition and another Appellants Versus Panna Lal Respondent RFA No. 135 of 2004 Collector, Land Acquisition and another Appellants Versus Hem Raj and others Respondents RFA No. 136 of 2004 Collector, Land Acquisition and another Appellants Versus Ram Parkash and another Respondents RFA No. 137 of 2004 Collector, Land Acquisition and another Appellants Versus Gram Panchayat, Diyar Respondent Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellant: Mr.R.K.Bawa, Advocate General, with Mr.Anil Jaswal, Dy. Advocate General. For the respondent: Mr.S.M.Goel, Advocate. Sanjay Karol, J. (Oral) The present appeals arise of the common award dated 1.9.2003 passed by learned District Judge, Kullu, in Reference Petition No.107/2002, titled as Panna Lal vs. Collector, Land Acquisition, Ref. Petition No.108/2002, titled as Hem Raj and others vs. Collector, Land Whether the reporters of Local Papers are allowed to see the Judgment? 2 Acquisition, Ref. petition No.102/2002, titled as Ram Parkash and others vs. Collector, Land Acquisition, Ref. Case No.110/2002, Gram Panchayat Diyar vs. Collector, Land Acquisition. For the public purpose, namely, Bhunter-Diyar-Shondha- Dhar road, the State of Himachal Pradesh acquired the claimants land situated in Phati Diyar Kothi Kotkandi, Tehsil and District Kullu, H.P. Notification dated 15.1.2999 under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) was lastly published in H.P. Rajpatra on 30.1.1999. The Collector, Land Acquisition, passed award No.9/2000 under Section 11 of the Act on 27.9.2000. In terms of the Collector’s award the market value of the acquired land was determined at the following rates:- Kind of Land Area Market value of Acquired land Per bigha Bagicha Bathal 1-0-0 60,000/- Bathal Dom 0-11-1 60,000/- Bathal Som 1-2-17 60,000/- Gair Mumkin 2-2-3 60,000/- Aggrieved by the same, the claimants filed Land Reference Petitions under Section 18 of the Act before the District Judge, Kullu. Based on the pleadings of the parties, the Court below framed the following issues on 25.9.2002:- 1. Whether the petitioners are entitled for enhancement of compensation of the acquired property as alleged, if so, what is market value? OPP 3 2. Whether the petitioners are entitled for the benefit of Section 23 (1-A) of the Land Acquisition Act, as alleged? OPP On 13.9.2002 all the Reference Petitions were consolidated by the District Judge with Reference Petition No.102 of 2002, titled as Panna Lal vs. Collector, Land Acquisition. Opportunity to adduce the evidence was afforded to the parties. Based on the material on record, the Court below enhanced the market value of the acquired land to Rs.13,333/- per biswa regardless of the category of land. In addition thereto, a sum of Rs.1,25,000/- was also awarded to the claimant Smt. Janki Devi, whose house was also acquired by the State. Mr. Jaswal, learned Deputy Advocate General, has argued that the enhancement is much on the higher side. Mr. Goel, has supported the award for the reasons set out therein. I have heard the learned counsel for the parties and perused the record. While determining the market value of the acquired land on the basis of comparable sale transactions, the factors which are required to be kept in view have been laid down by the Supreme court in Chimanlal Hargovinddas vs. Special Land Acquisition Officer, Poona and another, AIR 1988 SC 1652:- 1. A reference under Section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition Officer in his award unless the 4 same material is produced and proved before the Court. 2. So also the Award of the Land Acquisition Officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the Court hearing the Reference. It is merely an offer made by the Land Acquisition Officer at the material utilised by him for making his valuation cannot be utilised by the Court unless produced and proved before it. It is not the function of the Court to sit in appeal against the Award, approve or disapprove its reasoning, or correct its error or affirm, modify or reserve the conclusion reached by the Land Acquisition Officer, as if it were an appellate Court. 3. The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it. 4. The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course, the materials placed and proved by the other side can also be taken into account for this purpose. 5. The market value of land under acquisition has to be determined so as on the crucial date of publication of the notification under S.4 of the Land Acquisition Act (dates of Notifications under Ss.6 and 9 are irrelevant). 6. The determination has to be made standing on the date line of valuation (date of publication of notification under S.4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price. 5 7. In doing so by the instances method, the Court has to correlate the market value reflected in the most comparable instance which provides the index of market value. 8. Only genuine instances have to be taken into account. (Sometimes instances are rigged up in anticipation of Acquisition of land) 9. Even post-notification instances can be taken into account (1) if they are very proximate, (2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects. 10. The most comparable instances out of the genuine instances have to be identified on the following considerations: (i) proximity from time angle (ii) proximity from situation angle. 11. Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deducted by making suitable adjustments for the plus and minus factors vis-à-vis land under acquisition by placing the two in juxtaposition. 12. A balance sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchaser would be. 13. The market value of the land under acquisition has thereafter to be deducted by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors. Plus factors 6 1. Smallness of size. 2. Proximity to a road 3. frontage on a road 4. nearness to developed area 5. regular shape. 6. level vis-à-vis land under acquisition. 7. special value for an owner of an adjoining property to whom it may have some very special advantage. 14. The exercise indicated in clauses (11) to 13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. ….” In order to prove its case, the claimants examined witnesses, namely, Shri Balwant Singh (PW-1), Shri Bhagat Singh (PW-2), Shri Sunder Singh (PW-3), Shri Manmohan Gautam (PW-4), Shri Rajiv Kumar (PW-5) and Smt. Janaki (PW-6). They have proved on record sale deeds Ext.PW-1/A, Ext.PW-2/A, Ext.PW-3/A and also the valuation report Ext.PW-5/A to Ext.PW-5/M. In rebuttal, the respondents examined Shri Brij Bhushan (RW-1) AND Shri B.S.Parmar (RW-2). The valuation report carried out by the State with regard to house in question was also proved as RW-1/A to Ext.RW-1/F. In addition thereto, certified copies of sale deeds being Ext.RA to Ext.RH were also tendered by the State. The fact that the acquired land had great potential of being put to commercial use i.e. construction of hotels, stands proved by PW-4. PW-1 has proved sale deed (Ext.PW-1/A) vide which 2 Biswas of land was sold on 21.11.1994 for a sale consideration of Rs.30,000/-. Shri Bhagat Singh (PW-2) has proved sale deed (Ext. PW-2/A), whereby six biswas of land was sold for Rs.2,50,000/- immediately prior to the execution of land. 7 The exemplar sale land is just at a distance of about 300 – 400 yards away from Bhunter-Diyar road. PW-3 has proved sale deed Ext.PW-3/A whereby 10 Biswas of land stood sold in the year 1992 for a consideration of Rs.1,20,000/-. There is nothing on record which would show that these witnesses have deposed falsely or that the sale transactions are not genuine. In contrast, the State has only tendered in evidence the certified copies of sale deeds Ext.RA to Ext.RH. No doubt the same can be looked into without the vendor and vendee being examined, but, however, there is nothing on record to prove the fact that the land covered by the said exemplar sale deeds is similar to that of acquired land with respect to the use, nature and potentiality etc. Therefore, in my view, the same cannot be considered for determining the market value of the acquired land, particularly when on the record there is contemporaneous material to prove the contrary. In terms of exemplar sale deeds produced by the claimants, the average market value comes to Rs.22,222/- per biswa. Even though the land was acquired for the purpose of construction of road, however, the Court below applied deduction to the extent of 40% on the said amount and determined the market value of the acquired land to be Rs.13,333/- per biswa. I find nothing wrong with the same. In my view, the claimants were able to prove the market value of the acquired land at the time of acquisition proceedings. In Kanwar Singh vs. Union of India, (1998) 8 SCC 136, and Parmeshwari Devi vs. P.S.E.B., 1994 Supp (1) SCC 564, it has been held that while determining the market value the Court has to consider as to what price the parties are ready to sell and purchase the land. The instant land 8 and the exemplar sale land are similar not only with regard to use and potential but also with regard to extent of land acquired. In my view, the Court below has taken all precautions while determining the market value and more particularly the ratio of law laid down by the Apex Court in Chimanlal Hargovinddas (supra). The value of house belonging to Smt. Janki Devi was assessed by the Collector to be Rs.26,684/-. RW-1 and RW-2 could not prove the assessment report Ext.RW-1/A to Ext.RW-1/F in accordance with law. The same was not prepared either by these witnesses or in their presence. Therefore, the Court below rightly held that the same was inadmissible and could not be relied upon to determine the market value of the acquired super-structure. Resultantly the Court referred to and relied upon the statement of Shri Rajiv Kumar (PW-5), who proved on record the valuation report Ext.PW-5/B to Ext.PW-5/M. In terms of said valuation the market value was assessed at Rs.4,48,050/-, however, taking all precautions the Court below reduced the same to Rs.1,25,000/-. The claimants are not aggrieved of the same and I am of the considered view that the assessment carried out is on the lower side, but, however, since the claimants have not assailed the impugned award, I am not inclined to interfere and enhance the same. The Court below has considered the entire material on record. The evidence has been correctly appreciated. There is no illegality or irregularity in the impugned award. It is, however, clarified that the claimants shall be entitled to all benefits only from the date of publication of the Notification under Section 4 of the Act, which is 30.1.1999 and not the date of actual possession, which in the present case is alleged to be 9 much prior to the initiation of the acquisition proceedings. The claimants, however, shall be entitled to all statutory benefits in view of ratio of law laid down in Sunder v. Union of India, reported in (2001) 7 SCC 211. For all the aforesaid reasons, the appeals are partly allowed. However, there shall be no order as to costs. 15th December, 2008 (Sanjay Karol) (C) Judge.