IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RFA No. 431 of 2006 with Cross Objection No. 21 of 2007 and RFA No. 432 of 2006, RFA No. 433 of 2006, RFA No. 434 of 2006 and RFA No. 440 of 2006. Date of Decision : July 23, 2009 RFA No. 431 of 2006 Land Acquisition Collector and another Appellants. Versus Sh. Gopal Singh and others Respondents RFA No. 432 of 2006 Land Acquisition Collector and another Appellants. Versus Sh. Leela Dass and another Respondents. RFA No. 433 of 2006 Land Acquisition Collector and another Appellants. Versus Sh. Durga Dass Respondent. RFA No. 434 of 2006 Land Acquisition Collector and another Appellants. Versus Sh. Khubi Ram Respondent. RFA No. 440 of 2006 Land Acquisition Collector and another Appellants. Versus Smt. Neelu Respondent. 2 Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellants. : Mr. R. K. Bawa, Advocate General with Mr. Vivek Thakur, Addl. A.G. and Mr. J. S. Rana, Asstt. A.G. for the appellants. (In all the RFAs) For the respondents : Mr. Tek Chand Sharma, Advocate, for the respondents in RFA Nos. 431/06, 432/06, 433/06, 434/06. Sanjay Karol, J. (Oral) In the present appeals common award passed by the Additional District Judge, Shimla, H.P. in Land Reference Petition No. 34-S/4 of 2000, titled Sh. Gopal Singh and others versus State of H.P. and another, Land Reference Petition No. 14-S/4 of 2000, titled Neelu versus State of H.P. and another, Land Reference Petition No. 33-S/4 of 2000, titled Sh. Leela Dass and another versus State of H.P. and another, Land Reference Petition No. 35-S/4 of 2000, titled Sh. Durga Dass versus State of H.P. and another, Land Reference Petition No. 37-S/4 of 2000, titled Sh. Khubi Ram versus State of H.P. and another, passed on 31.7.2006 has been assailed. In RFA No. 431 of 2006 arising out of Land Reference Petition No. 34-S/4 of 2000 the claimant Sh. Gopal Singh has also filed Cross Objections. The appeals are being heard together as they were decided by a common impugned award. The Court below consolidated all the aforesaid Land Reference Petitions and parties were permitted to lead common 1 Whether reports of Local Papers may be allowed to see the judgment? 3 evidence in Land reference Petition No. 34-S/4 of 2000, titled as Sh. Gopal Singh and others versus State of H.P. and another. For deciding the present appeals the record of the said land reference petition has been considered. For the public purpose namely construction of Link Road to Parlog Pull from Mouja Malgi, Tehsil Sunni, District Shimla, H.P. claimants land situated in village Malgi was acquired. The Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) issued by the Government was published in the H.P. Rajpatra on 21.7.1999. The Collector Land Acquisition passed his award No. 2/2000 on 7.2.2000. In terms of the said award the market value of the acquired land was determined category wise as under: Classification of land Rates per bigha 1. Kiar Awal Rs. 2,25,600-00 2. Bakhal Awal Rs. 1,02,000-00 3. Bakhal Awal Rs. 63,600-00 4. Tikker Awal Rs. 37,200-00 5. Tikker Doyam Rs. 16,800-00 6. Ghasni Rs. 7,200-00 7. Banjar Rs. 9,600-00 Statutory compensation was also awarded to the claimants. The claimants being aggrieved of the same filed Land Reference Petition under Section 18 of the Act claiming higher compensation on different counts. According to the claimants the market value of the acquired land was Rs. 8,25,000/- per bigha (20 4 Biswa = 1 Bigha). Sh. Gopal Singh and others, being claimants in Land Reference Petition No. 34-S/4 of 2000 claimed compensation on account of damage caused to their house and unacquired land due to throwing of debris. The compensation of Rs. 2,05,000/- was claimed towards damage caused to the house, Rs. 75,500/- on account of loss of crop and Rs. 50,000/- for construction of the retaining wall. The Collector Land Acquisition took into account the market value of the adjoining village Koltu, for the reason that no sale transaction was available with respect to revenue village Malgi where the acquired land was situate. Based on the pleadings of the parties the Court below framed the following issues and afforded opportunity to the parties to lead evidence:- “1. Whether the Land acquisition Collector has inadequately assessed the market value of the acquired land, if so, whether the petitioners are entitled to the enhanced amount of compensation as alleged, to what extent? OPP 2. Relief.” By taking into account the material on record the Court below came to the conclusion that the claimants had been able to sufficiently prove that sale deed Ext. PW3/A had been in fact executed with respect to land situate in revenue village Malgi. The said sale being more proximate to the time of initiation of the 5 acquisition proceedings was made basis for determining the market value of the acquired land. However considering that the said sale transaction pertained to small parcel of land and for commercial purposes, after carrying out necessary deductions the market value of the acquired land was determined on the basis of classification of the acquired land. The rates determined by the Court below are as under: Classification of land Rates per bigha 1. Kiar Awal Rs. 3,00,000/- 2. Bakhal Awal Rs. 1,50,000/- 3. Bakhal Awal Rs. 1,20,000/- 4. Tikker Awal Rs. 80,000/- 5. Tikker Doyam Rs. 80,000/- 6. Ghasni Rs. 50,000/- 7. Banjar Rs. 50,000/- The compensation with respect to the land was accordingly enhanced and the State was directed to pay the same alongwith other statutory compensation. With respect to the damage caused to the property (house and land of claimant Sh. Gopal Singh) the Court awarded only Rs. 8000/- and that too for clearing the debris from the claimants unacquired land. Mr. R. K. Bawa, learned Advocate General ably assisted by Mr. Vivek Thakur, Addl. Advocate General has assailed the awards for the reason (i) that the sale deed Ext. R-1 placed on record by the 6 respondent-State was not taken into account. (ii) The compensation awarded is on the higher side. Per contra Mr. Tek Chand Sharma, learned counsel has invited my attention to the material on record to justify the compensation awarded for the acquired land. However he assailed the impugned award only with respect to the inadequate compensation awarded to claimant Sh. Gopal Singh on account of damage caused to his land and house. I have heard the learned counsel for the parties and have also perused the record. Ext. R-1 is sale deed dated 20.3.1999 whereby 0-12-92 hectares of land was sold for a sum of Rs. 18,000/-. No doubt Sh. Lek Ram (RW-1) has proved the same, but however, in my considered view the same cannot be made basis for determining the market value of the acquired land for the simple reason that it pertains to Mauja Kothi whereas the instant acquired land pertains to village Malgi. Kothi being adjoining village hence any sale transaction pertaining to the said village, under the facts of the present case, can be made basis for determining the market value. There is other contemporaneous material on record to prove the market value of the acquired land through the sale transaction pertaining to sale of land in village Malgi itself. Sh. Gopal Singh (PW-3) has proved sale transaction Ext.PW3/A. In terms thereof 3 biswas of land situate in village Malgi 7 was sold for a sum of Rs. 45,000/- on 4.6.1999. The transaction stands proved through the testimony of Sh. Gopal Singh (PW-3), Sh. Hem Singh (PW-6) and Sh. Rakesh Verma (PW-7). The evidence does not reflect that the transaction is not genuine or bonafide. Hence the same was rightly made basis for determining the market value of the acquired land. The exemplar sale land pertained to category “Ghasni” which is inferior to the acquired land and uncultivable and unirrigated. However, the said sale was for the purpose of setting up a shop alongside the road. The claimants land, as stands sufficiently proved through the testimony of Sh. Ghanshyam Lal (PW-5), Sh. Gopal Singh (PW-3) and Sh. Durga Dass (PW-4) was cultivable and irrigated. The witnesses have unequivocally deposed that they were growing vegetables, ginger etc. and were having an income of Rs. 70,000/- to Rs. 80,000/- per year. Evidently the acquired land is far superior in quality and use than the said exemplar land. The extent of the claimants land holding is as under: Sr.No. Khasra Nos. Area Share 1) Sh. Ram Saran 591/1, 590/1, 578/1 0-13-68 Half predecessor of 581/1 Gopal Singh etc. 2) Neelu 53/1 0-01-18 Full 3) Leela Dutt 17/1 0-01-02 2/10 share 4) Smt. Sundhuru 31/1, 37/1, 44, 0-12-10 Full predecessor of 42/1, 28/1, 43 Durga Dass & 45/1 5) Sh. Khubi Ram 575/1 0-03-27 Full. Individual share holding is also not very large. 8 The Court below, by taking into account the principles of law laid down by the Apex Court in Smt. Kausalya Devi Bogra and others versus Land Acquisition Officer, Aurangabad and another, AIR 1984 SC 892 and The Special Land Acquisition Officer, Bangalore versus T. Adinarayan Setty, AIR 1959 SC 429 (V 46 C 53), has rightly made necessary deductions for determining the market value of the acquired land. The deductions to the extent of 75% to 25% with respect to different categories of land have been carried out by taking into account the value of the sale transaction Ext.PW3/A. In my considered view the Court has correctly applied the principles of law and carried out deductions and no error has been committed while doing so. However this Court has constantly taken a view that where the land is acquired for the purpose of construction of road the rates determined are to be uniformally applied for awarding compensation regardless of the category of land. During the course of the hearing Mr. Tek Chand Sharma, learned counsel however stated that in the absence of any appeal on the part of the claimants with respect to further enhancement of the market value of the acquired land, the value determined and the compensation awarded by the Court below would be acceptable to the claimant as it is. Hence this Court is not passing any further orders with respect to the same. 9 With respect to the Cross Objections filed by the claimant Sh. Gopal Singh it is evident that the Court below has erred in correctly appreciating the material placed on record by him. The Court erred in recording that from the testimony of Sh. B. C. Sharma, Consultant Engineer (PW-1) and Sh. Visheshwar Lal, Patwari (PW-2) it could not be proved that any damage was caused to the claimants house. Sh. Gopal Singh (PW-3) has category deposed that due to negligent cutting and blasting done by the State, while constructing the road huge boulders and mud had fallen on his unacquired land and his house and land stood damaged. For the purpose of assessing the damage he had hired services of Civil Engineer who prepared his report Ext.PW1/A to Ext.PW1/C after spot inspection. Sh. B. C. Sharma (PW-1), Engineer, an expert, has proved his report Ext. PW1/A to Ext. PW1/C which was prepared after visiting the site. He has categorically deposed that the claimants house was damaged due to the construction, heavy blasting and throwing of boulders from the road. Similarly Sh. Visheshwar Lal (PW-2) Patwari, has deposed that he had prepared the revenue papers (Misal Haquiat Bandobast Zadid and Khasra Girdawari)(Ext.PW2/A and Ext. PW 2/B) wherein it is recorded that due to the construction of road through the claimants land, debris had fallen and damaged his unacquired land rendering it uncultivable. These witnesses have been cross examined and there is nothing from which it could be said that they have deposed falsely. 10 Ext. PW1/A is the report from which it is evident that substantial damage has been caused to the claimants house and Rs. 49,100/- was required to be spent for restoration/repairs. In my considered view this amount needs to be awarded to the claimant Sh. Gopal Singh. With respect to the construction of retaining wall the Court below has rightly held that in the absence of any evidence no compensation could be awarded for the same. That on the claimants unacquired land boulders and debris had fallen due to faulty construction of the road is also evident from photographs Ext. P1 to Ext. P14. The Court below has therefore rightly awarded a sum of Rs. 8000/- for clearing the debris. For the aforesaid reasons the appeals filed by the State are dismissed and the Cross Objection filed by claimant Sh. Gopal Singh is allowed. The claimants shall be entitled to all statutory payments keeping in view the ratio of law laid down by the Apex Court in Sunder versus Union of India, 2001 (7) SCC 211. The impugned award is modified to the aforesaid extent and the present appeals are disposed of accordingly. (Sanjay Karol), Judge. July 23, 2009 (PK)