IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 254 of 1998 with RFA Nos. 246, 249, 250, 251, 252, 253, 255, 256, 257, 258, 259, 260, 302 of 1998 and RFA Nos. 12, 13, 14, 26, 27, 28 of 1999. Judgement reserved on: 7.4.2008. Date of decision:June 24, 2008. [ For title, please see pages (i) to (iii) ] Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. N.K. Sood, Advocate. For the Respondents : Mr. R.K. Bawa, Advocate General with Mr. A.K. Bansal, Addl. Advocate General. ( in all twenty appeals). Kuldip Singh, Judge. This judgement shall dispose of twenty appeals, i.e. RFA Nos. 254, 246, 249, 250, 251, 252, 253, 255, 256, 257, 258, 259, 260, 302 of 1998, RFA Nos. 12, 13, 14, 26, 27, 28 of 1999., which have arisen out of common award, dated 24.3.1998, passed by the learned Addl. District Judge, Mandi in Ref. Petition Nos. 51, 75, 73, 52, 50, 68, 74, 66, 60, 57, 67, 71, 58, 72, 54, 59, 53, 70, 56 and 69 of 1998, respectively. 2. The facts in brief are that State of Himachal Pradesh for construction of Pungh -Ghangnoo road in Mohal Dhar, Tehsil Whether the reporters of the local papers may be allowed to see the Judgment? - 2 - Sundernagar for public purpose, issued notification under Section 4 of the Land Acquisition Act, 1894 (for short, the Act) for acquiring 30-14-1 bighas land which was published in the gazette on 24.7.1982. The Land Acquisition Collector (for short, the Collector) made the award on 23.9.1986. The details of lands of the appellants and compensation awarded to them by the Collector, as referred in the impugned award, are as follows :- Sr. No. Ref. No. & name of parties. Description of land. Award of Collector. 1. 60/88 Devku vs. Collector Kh. No. 10/1 measuring 0-18-8 B. Khadetar 9224.25 2. 50/88 Bhadru vs. Collector 0-16-1 B. Barani Doom, 0-6-1 gair mumkin, 1-10-0 gair mumkin Sadak Kh. Nos. 1439/607/1 38400-00 3. 51/89 Durga vs. Coll. 0-6-0 B. Barani Abal Kh. No. 1466/1249/1 17502-90 4. 52/88 Haria vs. Coll. 0-8-2 B. Khadetar Kh. No. 6/1 4060-70 5. 53/88 Parvati vs. Coll. 0-2-4 B. Khadetar, 0- 8-17 B. Gair Mumkin Sadar, 0-13-4 B. Khadetar Kh. No. 1250/1, 1253, 1260/1 32307.60 6. 54/88 Balku vs. Coll. 0-8-15 B. Khadetar, 0- 15-17 Khadetar, Kh. No. 421/1, 577/1. 12081.80 7. 56/88 Tulsi Vs. Coll. 0-2-17 B. Khadetar 0-1-1 B. Khadetar Kh. No. 567/1, 570/1 19055-10 8. 57/88 Chodhry Vs. Coll. 1-7-18 B. Khadetar Kh. No. 1267/1, 1360/1 13986.80 - 3 - 9. 58/88 Jai Kishan vs. Coll. 6-7-15 B. Khadetar, Kh. 1361/1, 1373/1 64043.55 10. 59/88 Devku vs. Coll. 0-2-11 B. Khadetar, Kh. No. 17/1 1278.40 11. 66/88 Gwainu vs. Coll. 1-6-12 B. Brani Abal, Kh. No. 1431/311/1 73905-05 12. 67/88 Sukh Ram vs. Coll. 0-11-8 Brani Abal, 0- 17-19 Brani abal, 0- 12-19 Khadetar, 0-12- 14 Khadetar, Kh. No. 318/1, 403/1, 319/1, 401/1. 87477.25 13. 68/88 Devi Das vs. Coll. 2-11-6 B. Khadetar, Kh. No. 424/1, 1346/1, 568/1, 1314/1, 1413/1352/1, 569/1. 25717.70 14. 68/88 (sic) 69/88 Basakhu vs. Coll. 1-0-14 B. Khadetar, Kh. No. 13/1, 14/1, 37/1. 18036.85 15. 70/88 Nakbinu Vs. Coll. 0-12-14 Brani abal, Kh. No. 1434/561/1 25283.65 16. 71/88 Kartar vs. Coll. 1-8-3 B. Khadetar, Kh. No. 1389/1 14112.15 17. 72/88 Nika vs. Coll. 0-5-4 B. Khadetar, Kh. No. 1478/1350/1 2606.90 18. 73/88 Nanak Chand vs. Coll. 0-1-12 B. Khadetar Kh. No. 1479/1350/1 802-10 19. 74/88 Kanoru vs. Coll. 0-5-10 Barani abal, 0- 8-12 brani abal Kh. No. 604/1, 606 39173.10 20. 75/88 Ram Dyal vs. Coll. 1-0-14 Khadetar, Kh. No. 422/1, 567/1 10377.30 3. The appellants- claimants were aggrieved by the award made by the Collector, therefore, they filed reference petitions for enhancement of compensation. The learned Additional District Judge, - 4 - vide common award dated 2.12.1989 in all the reference petitions held that appellants- claimants are entitled to compensation at the rate of Rs.45,000/- per bigha regardless of nature of the land. The learned Additional District Judge had also allowed other statutory payments. On the amount of compensation, the respondents were directed to pay interest at the rate of 9% from January 1972 to 1973 and thereafter at the rate of 15% till payment. The award dated 2.12.1989 of learned Additional District Judge was assailed in this court by way of RFA No. 20 of 1990 alongwith seventeen other appeals which were decided by a Division Bench of this court on 3.7.1997 with the following observation:- “In view of our earlier conclusion that the value fixed by the Addl. District Judge is erroneous, the appeals are allowed to that extent and the matters are remanded for fresh disposal in accordance with law to the Addl. District Judge. The question of interest has been concluded by us in this judgement and it cannot be raised before the Addl. District Judge. Parties shall appear before the Addl. District Judge on 8th August, 1997. In view of the fact that the matters have been pending for quite a long time, the Addl. District Judge is directed to dispose of the same and pass appropriate Award on or before 31.3.1998. Both the parties are permitted to adduce further evidence, if necessary.” 4. The learned Addl.District Judge after the judgement of remand dated 3.7.1997 passed by this court, gave further opportunity to the parties to lead evidence. The parties led more evidence and ultimately the learned Additional District Judge vide common award - 5 - dated 24.3.1998 awarded Rs.25,025/- and Rs.22,240/- per bigha for Barani Abal and Barani Doem, respectively, as awarded by the Collector, but awarded Rs.10,000/- per bigha for acquired land recorded as Kharetar and gair mumkin. The other statutory payments and compulsory acquisition charges were also allowed on the amount of compensation so determined. The interest at the rate of 9% from January 1972 to December 1972 and at the rate of 15% per annum from 1.1.1973 on the enhanced amount of compensation has also been awarded. The land owners have come in appeal against the impugned award dated 24.3.1998. 5. I have heard Mr. N.K. Sood, learned counsel for the appellant in each appeal and Mr. R.K. Bawa, learned Advocate General assisted by Mr. A.K. Bansal, learned Additional Advocate General for respondents and gone through the record. On behalf of the appellants, it has been submitted that learned reference court has misconstrued, misinterpreted the material on record. The appellants are entitled to compensation not less than Rs.45,000/- per bigha irrespective of classification of the land. The acquired land had high potential value. In the other acquisitions in that area at the same time the respondents have paid more compensation to the land owners irrespective of the classification of the land and where the potential value of the land was much less than the potential value of the acquired land. The learned counsel for the appellants has submitted that respondents have not led worth believing legal evidence on record in support of their contentions. 6. The learned Advocate General has supported the impugned award. He has submitted that the appellants have got - 6 - interest even prior to the publication of notification, under Section 4 of the Act, but respondents have accepted the award. He has submitted that on the basis of material on record. The appellants are not entitled to enhancement of compensation. 7. In order to appreciate the rival contentions of the parties, it is necessary to refer to the evidence which has come on record. PW 1 Gawanu Ram has stated that Mohal Pungh and Sundernagar are adjacent to Mohal Dhar where his land is situated. Sundernagar is in municipal area. In the year 1982, the rate of land in his Mohal was Rs.10,00,000/- per biswa. The Banjar land had also the same rate. The polytechnic college, Sundernagar, Police Station, Sundernagar and courts are at a distance of five minutes walk from the acquired land. The acquired land is at a distance of 50 meters from national highway. Housing Board had acquired Raja Hari Sen’s land which was in forest at a distance of two kilometers. There was no house or abadi on that land and there was no road connecting the land which was acquired by the housing board. Jagat Singh had sold land in village Salah in Pungh Mohal in a Nalla down below the road. Their lands are better in comparison to land sold by Jagat Singh. In cross examination, he has stated that their lands are not outside the town. 8. PW 2 N.S. Thakur has produced some record. PW 3 Devku Ram has stated that their land was acquired for construction of road which was at a distance of 80 meters from national highway. The land acquired for housing colony was hilly and the acquired land is plain. The industries are coming towards Mohal Dhar. Sundernagar bazaar is up to Mohal Thala and adjacent to that are their lands. The - 7 - housing colony was constructed on the land of Raja Hari Sen. In the year 1982, the market value of acquired land was Rs.8,000/- to Rs.10,000/- per biswa. 9. PW 4 Jai Kishan has stated that his land is situated in Mohal Dhar and adjacent to it is Mohal Thala. Pungh and Sundernagar Mohals are in municipal area. The municipal area starts at a distance of about 50 meters from their lands. Sundernagar bazaar is at a distance of 50-60 meters from his land. The lands of Dhar Mohal are at a distance of 50-60 meters from national highway. There is no difference of prices of lands in Mohal Thala, Sunderngar, Pungh and Dhar. The housing board has constructed a housing colony on the land of Hari Sen, which was sloppy as well as hilly and at a distance of 2½ kilometers from the town. There was no abadi at that place, but his land is plain. There are houses, shops, industries in that area. The hospital, S.D.M., Office, Police Station, Courts and schools are at five to ten minutes walk from his land. Jagat Singh Chandel had sold land in municipal area which was in the shape of bowl. 10. PW 5 Nar Singh Dass has stated that he had purchased 112 sq. meters land in revenue estate Pungh for Rs.9,000/- vide sale deed Ex. PW 5/A. He had seen the land under acquisition. The revenue estates Pungh and Dhar as also Thala are adjacent to the land under acquisition. The municipal limits are close to revenue estate Dhar. The distance by air is 100 meters from municipal limits and distance by road is less than half kilometer. He had constructed four storied building and then reached road level. The land purchased by him was not level, it is in Nalla. He has also seen the housing board - 8 - colony. At that time the colony land was barren. There were no facilities on the land of housing board. The colony is at a distance of 2½ kilometers from the national highway. There was no habitation on that land at that time. The land under acquisition is fit for industry and housing colony. The land is close to town. In cross examination, he has stated that land under acquisition is at a distance of 150 yards from revenue estate Pungh. The bus-stand, national highway is at a distance of 2½ kilometers from this land. 11. PW 6 Dinesh Kumar, Registration Clerk has stated that Ex. PW 5/A is correct copy of the registered sale deed available with the Sub Registrar, Ex. PW 6/A and Ex. PW 6/B are also correct copies of original sale deeds available with the Sub Registrar. 12. PW 7 Prabhu Dayal has stated that in the year 1983 he had purchased 80 sq. meters land in revenue estate Pungh vide sale deed Ex. PW 6/A for Rs.10,000/-. The land purchased by him was uneven and by the side of Nalla. It was barren land. The land under acquisition is at a distance of 20 meters from the last shop of Sundernagar town. College, School, hospital and courts are at a distance of one kilometer from the land under acquisition. He has seen the housing board land which was barren and having no hospital, road at the time of the acquisition. 13. PW 8 Nagu Ram has stated that in the year 1983 he had sold 112 sq. meters land to PW 5 Nar Singh Dass for Rs.9,000/- vide sale deed Ex. PW 5/A. He had also sold 80 sq. meters land to PW 7 Prabhu Dayal in the year 1983 for Rs.10,000/-vide sale deed Ex. PW 6/A. The lands which were sold in favour of PW 5 and PW 7 were near - 9 - Nalla and were barren but within the municipal limits of Sundernagar. He had seen the acquired land. The township is extending towards acquired land. He has denied the suggestion that revenue estate Dhar is at a distance of one kilometer from National highway. 14. PW 9 Nilamber Sharma has stated that he had been employee of municipal committee, Sunderngar from 1962 to 1983. Octroi post towards Bilaspur is at a distance of 500 meters from the end point of municipal limits towards Bilaspur. The revenue estate Dhar starts at a distance of about 750 meters from national highway No.21. The distance through crow flight between national highway 21 and revenue estate Dhar is about 25 meters. He has stated that his own land in revenue estate Thala was acquired for the said road and the acquired land is similar to his land which was acquired for the same road. He has stated that his land which was acquired for the same road is at a distance of about 20 yards from national highway. 15. PW 10 Jai Kishan has stated that he is proprietor of land in Revenue Estate, Pungh. The land under acquisition is near to municipal limit Sundernagar. The land of V. Verma was acquired for Pungh- Ghangnoo road. He has stated that his land was also acquired. The land of the appellants is comparable in all respects with his own land as well as the land of V. Verma. The town is developing towards the land under acquisition. In cross examination, he has stated that land under acquisition is at a distance of half kilometer from National Highway by road. He has answered in affirmative the suggestion that with the construction of highway the cost of the land has increased manifold and the development is also taking place as a - 10 - result of the construction of highway through the land under acquisition. 16. PW 11 Ram Dayal has stated that he is proprietor of land in Revenue Estate, Dhar, his land in Revenue Estate, Dhar was acquired for Pungh- Ghangnoo road, which was near to municipal limit Sundernagar. The Revenue Estate, Dhar has facilities of schools, college and hospital. The land under acquisition is comparable in all respects with the land of V. Verma. Sundernagar township is developing towards Revenue Estate, Dhar, which is at a distance of five minutes walk from the land under acquisition. In cross examination, he has stated that his land which was acquired was at a distance of 2½ kilometers from National Highway. The land of some of the appellants is beyond his land, whereas the land of some of the appellants is nearer to the National Highway in comparison to his land. 17. PW 12 Kartar Singh has stated that he is proprietor in Revenue Estate, Dhar, his land was acquired for Pungh- Ghangnoo road, which was near to municipal limit Sundernagar. The Revenue Estate, Dhar has facilities of school, college and hospital. The land under acquisition is comparable in all respects with the land of V. Verma. The township of Sunderngar is developing towards Revenue Estate, Dhar. The township of Sundernagar has five minutes walk from the land under acquisition. In cross-examination, he has stated that his land, which was acquired is at a distance of half kilometer from National Highway, a high school and small scale industry (flour mill) are near to his land which was acquired. - 11 - 18. The learned counsel for the appellants- claimants had tendered in evidence copy of mutation No. 540 Mouza Sundernagar Ex. PA, copy of mutation No. 165, Mouza Thala Ex. PE, copy of mutation No. 234, Mouza Dhar Ex. PF, copy of award dated 4.11.1989 Ex. PD, copy of missal hakiyat, Mouza Thala Ex. PG, copy of missal hakiyat for the year 1989-90 Mouza Chamukha Ex. PH, copy of missal hakiyat, Mouza Dhar Ex. PJ, copy of jamabandi for the year 1992-93 of Mouza Dhar Ex. P 12 and copy of jamabandi for the year 1986-87 of Mouza Dhar Ex. PL etc. 19. RW 1 Jagdish Chand, Patwari Mohal Kapahi has stated that Mohal Thala falls in his circle. The distance between Mohal Pungh and Mohal Dhar is one kilometer. He has produced five years average of sales from June 1977 to 15th June, 1982 Ex. RW 1/A and five years average of sales from the year 1985 to 1990 Ex. RW 1/B. In cross examination, he has stated that S. D.M. office, courts, college and hospital are at a distance of one and half kilometers from Mohal Dhar. Sundernagar town is extending towards acquired land. 20. RW 2 Ram Piara, Patwari Churar has stated that Mohal Dhar falls in his circle. He has produced average sale price for the year 1982-83 Ex. RW 2/A and that of 1997-98 Ex. RW 2/B. In cross examination, he has admitted that acquired land which has been shown as Kharetar is in the form of fields on the spot. In Ex. RW 2/A and Ex. RW 2/B the average has not been prepared as per classification of the land. 21. RW 3 Pardeep Kumar Gupta, Assistant Engineer, National Highway, Sub Division, HPPWD Sundernagar has stated that he is - 12 - working as Assistant Engineer, HPPWD Sub Division, Sundernagar since June 1994. He has seen Pungh- Ghangnoo road which falls in his jurisdiction. He was not Assistant Engineer Incharge of the road at the time of construction of the road and at that time in 1978 or around someone else was the Assistant Engineer. RW 4 has produced award, dated 23.9.1986 Ex. RW 4/A.of the road. 22. It has come on record that respondents took possession of the acquired land in the year 1972 and thereafter constructed the road. The notification under Section 4 of the Act was published on 27.4.1982 after about ten years of taking over the possession of the acquired land. The market value of the acquired land is to be determined at the time of publication of notification under Section 4 of the Act. On 24.7.1982, when the notification under Section 4 of the Act was published, the classification of the land was changed by the respondents themselves. The acquired land on the date of publication of notification under Section 4 of the Act because of changed circumstances could not be classified as Barani abal, Barani doem, gair mumkin kharetar etc. The land under acquisition acquired uniform classification as against classification made by the Collector and held by the learned Reference Court. 23. The appellants have produced sale deed dated 18.4.1982 Ex. PA of Mohal Pungh vide which 81 sq. meters were sold for a sale consideration of Rs.12,000/-. On the basis of sale deed Ex. PA the rate comes at Rs.148/- per sq. meter. The appellants have also produced sale deed dated 9.2.1983 Ex. PW 5/A situate at Mohal Pungh vide which 112 sq. meters were sold for a sale consideration of Rs.9,000/- - 13 - and according to this sale deed rate comes at Rs.80/- per sq. meter. The appellants have also produced sale deed dated 8.4.1983 Ex. PW 6/A vide which 80 sq. meters of land situate at Mohal Pungh was sold for a sale consideration of Rs.10,000/- and according to this sale deed the rate comes at Rs.125/- per sq. meter. The award dated 4.11.1989 Ex. PD pertains to same road namely Pungh– Ghangnoo road for which Section 4 notification was issued on 24.7.1982. As per award Ex. PD, the market value of the land of Visheswar Verma was determined at Rs.65,000/- per bigha and of others Rs.45,000/- per bigha. Ex. PA award dated 11.9.1986 is of land measuring 8710 sq. meters acquired for construction of housing board colony in Mohal Sundernagar vide notification dated 4.8.1982 under Section 4 of the Act and for this acquisition the learned Reference Court has determined the market value at Rs.70/- per sq. meter. 24. The respondents have placed on record five years average sale price, vide Ex. RW 1/A of Mohal Thala from 16.6.1977 to 15.6.1982. They have also placed on record the average sale price of Mohal Dhar for the year 1982-83 vide Ex. RW 2/B. The average sale price Ex. RW 1/B of Mohal Thala is of the period from 16.6.1982 to 15.6.1990 and is not relevant as this average sale price is based upon the sale transactions much after the publication of Section 4 notification in the present case except for the year 1982. Similarly the average sale price Ex. RW 2/C of Mohal Dhar from 1.2.1997 to 30.1.1998 is also not relevant. 25. It has come in evidence that Mohal Dhar is adjacent to Mohals Pungh and Sundernagar. The Pungh- Ghangnoo road was - 14 - constructed in Mohals Dhar, Pungh and other Mohals. It has come on record that Mohal Dhar is quite close to Sundernagar township which consists of Mohals Pungh and Sundernagar. As per oral evidence led by the appellants, Courts, bus stand, police station and college are quite close to the acquired land. The witnesses have given different versions about the distance of these places from the acquired land. It is reasonable to infer from the evidence on record that all these places are quite near to the acquired land. The parties have placed on record no sale deed of relevant time of Mohal Dhar which can be taken into consideration for assessing the market value of the acquired land. 26. The respondents have produced average sale price Ex. RW 2/B for the year 1982-83 of Mohal Dhar and also average sale price Ext.RW-1/A of mohal Thala from 16.6.1977 to 15.6.1982. The respondents have not placed on record the sale transactions on the basis of which average sale price Ex. RW 2/B and Ext.RW-1/A have been prepared nor they have led any evidence to show the comparability of the lands covered by Ex. RW 2/B and Ext.RW-1/A with the acquired land. In P. Ram Reddy and others vs. Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad and others 1995 (2) SCC 305, the Hon’ble Apex Court has held that value of building, plots mentioned in basic value register can be of no assistance in determining the market value of the land acquired under the Act. In The Collector Land Acquisition vs. Revat Ram deceased through his legal representatives Tikamu Devi and others 1998 (1) Shim. L.C 152, a Division Bench of this Court has held that the statistics of sales are not admissible in evidence. The average - 15 - sale price Ex. RW 2/B for the year 1982-83 of Mohal Dhar and Ext.RW- 1/A for the years 1977 to 1982 of mohal Thala are based upon the statistics of sales and therefore are of no utility in determining the market value of the acquired land. 27. The sale deeds Ex. PA dated 18.4.1982 is of adjacent Mohal Pungh and as per this sale deed rate comes at Rs.148/- per sq. meter. This sale deed is immediately prior to notification under Section 4 of the acquired land. The sale deed Ex. PA is genuine, there is no reason to disbelieve Ex. PA. The sale deed Ex. PW 5/A dated 9.2.1983 and sale deed Ex. PW