IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No.150 of 2003 with RFA No.151 of 2003 Date of Decision : September 10, 2008. RFA No.150 of 2003 LAC and another …Appellants. Versus: Jogi alias Jogi Ram and others …Respondents. RFA No.151 of 2003 LAC and another …Appellants. Versus: Nup Ram and others …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellants: Mr. R. K. Bawa, Advocate General with Mr. Vivek Thakur, Addl. A.G. and Mr. Anil Jaswal, Dy. A. G. For the respondents. Mr. Arvind Sharma, Advocate SANJAY KAROL, JUDGE (Oral). Both the appeals arise out of a common Award dated 31.8.2002, passed by the District Judge, Kullu, H. P. in Land Reference Petition No. 29/2001 titled as Jogi alias Jogi Ram and others vs. LAC & another and Land Reference Petition No. 30/2001 titled as Nup Ram and others vs. LAC & another and as such are being disposed of by a common judgment. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 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 7.6.1995 (lastly published on 3.7.1995) was issued by the State Government seeking to acquire the claimants land measuring 2-6-5 bighas situate in Village Phati Kharahal, Tehsil and District Kullu, H.P. The acquisition proceedings concluded with the passing of the Collector’s Award No.4/1997 dated 9.4.1997, wherein the market value of the acquired land was assessed at Rs.38,624/- per bigha for Bathal Dom category of land. The acquired land was having an orchard having fully grown fruit bearing trees. In the Award itself, the Collector clarified that since the evaluation of the fruit trees was awaited from the Horticulture Department, therefore, supplementary Award with regard thereto would be issued subsequently. Aggrieved by the same, the claimants filed a Land Reference Petition under Section 18 of the Act seeking enhancement of the compensation awarded by the Collector. The Court below famed the following issues :- 1) Whether proper and adequate compensation has not been paid to the petitioners of the acquired property. If so what was its market value at the time of acquisition? OPP 2) Whether possession of the acquired land was taken by PWD in the year 1980 as alleged? If so its effect? OPP 3) Whether compensation for improvements made by the petitioner on the acquired land was not assessed nor paid and what was costs of improvements? OPP 3 4) Whether adjoining unacquired land of the petitioners was injuriously affected as alleged? OPP 5) Relief. Based on the evidence led by the parties (oral and documentary), the market value of the claimants land was enhanced from Rs.38,624/- to Rs. 3 lacs per bigha. The basis for enhancement of the compensation was the Collector’s Award No.9/1994 dated 26.10.1994 (Ext.PD); the Award passed by the District Judge in Reference Petition No.96/98 dated 18.9.2000 (Ext.PE) and the Award passed by the District Judge, Kullu in Reference Petition No.11/96, dated 31.7.1998 (Ext.PF). The present appeals have been filed by the State. 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 Ishri Dass (PW-1), Khimi Ram (PW-2), Kanshi Ram (PW- 3) & Ram Lal (PW-4). Sale Deeds Ext.PW-1/A & Ext.PA were proved by the claimants and the Awards Ext.PD, Ext.PE & Ext.PF were also tendered in evidence. To rebut the claimants evidence, respondents examined S/Shri Manu Ram (RW-1), Ved Parkash (RW-2) & Thailu Ram (RW-3) and proved on record the annual average price maintained by the Revenue Department Ext.RW-2/A for the period August 1994 to August 1995 and also Sale Deeds Ext.RW- 4/A, Ext.RA and Ext.RW-3/A. 4 Sale Deeds produced by the respective parties have been perused and, in my view, they have rightly not been relied upon by the Court below for the reason that they pertain to a far of place and as such cannot be considered for determining the market value of the acquired land. Annual average price Ext.RW- 2/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. That apart there is nothing on record to prove the similarity of the acquired land with the land on the basis of which the same is prepared. Award Ext.PE dated 18.9.2000 passed by the District Judge, Kullu in Reference Petition No. 96/98 titled as Dot Ram and others v. Collector LA and another etc. and Award Ext.PF dated 31.7.1998 passed by the District Judge, Kullu in Reference Petition No.11/96 titled as Dharambir and another v. Collector LA and another, and other connected matters also cannot be considered for the reason that the same have been assailed by the State and the appeals are pending before this Court. This is the position as conveyed by the learned counsel for the parties. This leaves us with the Award Ext.PD dated 26.10.1994 passed by the Collector under the Land Acquisition Act, 1894. Perusal of the same would show that land in Village Phati Kharahal, Tehsil and Distt. Kullu, was acquired for the purpose of construction of “National Highway-21 Kullu Bye Pass”. After considering the material on record, the Collector himself uniformly determined the market value of the acquired land at Rs. 3 lacs per bigha. 5 Both PW-1 & PW-2 have deposed with regard to the similarity and proximity of the acquired land with that of the land covered under Award Ext.PD. While passing the Award Ext.PD, the Collector himself has observed that :- 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.10,599.00 per bigha for Bathal Som and Gair Mumkin kind of land. The afore said average value is the value of transactions taking place in the entire Phati Kharahal which extends up to 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 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 6 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. As per the ratio of law laid down by the Apex Court in Karan Singh and another v. Union of India (1997 (8) SCC 186), the judgments of the Courts in land acquisition cases or the awards given by the Land Acquisition Officers can be relied upon as piece of evidence for determining the market value of the land, if the same are admitted in evidence and there is evidence to prove with regard to the similarity of land and other attending circumstances. Shri Khimi Ram (PW-2) has categorically deposed that the acquired land is on the Eastern side and adjoining to the land acquired for the construction of the “National Highway-21 Kullu Bye Pass” and the land of other claimant Shri Anup Ram is at a distance of 3-4 mtrs. The acquired land is an orchard and just opposite to the Akhara Bazar. The land is extremely suitable for setting-up of a Hotel due to its proximity with the National Highway under construction as also the main Kullu Bazar. From Tourism point of view it has great potential. There is no effective and serious cross-examination of this witness. Since the potentiality, the use, the location, its proximity with the main Kullu bazaar and the National Highway stand proved, I see no reason as to why the claimants should also not be awarded compensation at the same rates at which the Collector had assessed the market value in terms of Ext.PD. 7 Importantly, the Land Acquisition Officer in both the cases is the same. The Court below has determined the market value on the basis of Awards Ext. PD, Ext. PE and Ext. PF. It is clarified that I have not taken into consideration the Awards Ext.PE and Ext. PF at all while adjudicating the appeals and determining the market value of the acquired land. The matter needs to be looked into from yet another angle. The Collector had mentioned that the supplementary Award for the compensation of the trees would be issued after the report was received from the Horticulture Department. The Award has been passed after taking into consideration the entire material. I see no reason to interfere with the same. The appeals are accordingly dismissed. However, it is clarified that 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). The interest shall be payable from the date of the publication of the Notification issued under Section 4 of the Act. ( Sanjay Karol ), Judge. September 10, 2008. (rana)