IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: RFA.No.. 77/2004 with RFA.Nos.78/2004, 102/2008, 418 to 422/2004 Date of Decision:1st September, 2008. 1.RFA.No.77 of 2004. L.A.C. and another …Appellants. Vs. Sh. Gorkhia. ..Respondent. 2.RFA.No.78 of 2004. L.A.C. and another …Appellants. Vs. Sh. Lekh Ram. …Respondent. 3.RFA.No.418 of 2004. State of H.P & others. …Appellants. Vs. Shri. Madan. …Respondent. 4.RFA.No.419 of 2004. State of H.P.and others ..Appellants. Vs. Shri. Ravinder and others. …Respondents. 5.RFA.No.420 of 2004. State of H.P and others …Appellants. Vs. Sh.Banku Ram. …Respondent. 6.RFA.No.421 of 2004. State of H.P and others …Appellants. Vs. Shri. Pali. …Respondent. 7.RFA.No.422 of 2004. State of H.P and others …Appellants. Vs. Shri Gorkhia. …Respondents 8.RFA.No.102 of 2008. State of H.P. and others. ..Appellants. Vs. Jia Lal and others. …Respondents. 2 Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for Reporting?1 For the appellants: Mr.Anil Jaswal, Dy. Advocate General. For Respondents : Ms.Sunita Sharma, Advocate (in RFA.Nos.77 & 78/2004.) Mr.B.S.Kanwar, Advocate (in RFA.Nos.102/2008, 418 to 422/2004.) Sanjay Karol, J (Oral). Land Reference Petitions impugned in RFA.No.418/2004 to RFA.No. 422/2004 were disposed of by a common award by the District Judge. The common award impugned in RFA.No.77 of 2004 and RFA.No.78 of 2004 was passed in two Land Reference Petitions. The evidence (documentary and oral) is common and almost similar and as has been agreed upon by the learned counsel for the parties are being disposed of by a common judgment. The decision in the aforesaid appeals would have a bearing on the decision in RFA.No.102 of 2008, therefore, the same is also being heard and decided together. In terms of the application (CMP.Nos.614 of 2004 and 615 of 2004), sale deeds dated 12th August, 1999 and 23rd August, 2002 executed by claimant Gorkhia and one Shri Premu are sought to be placed on record. Applications are allowed. 1 Whether reporters of Local Papers may be allowed to see the judgment? 3 For the public purpose, namely, construction of Treatment Plant of Sewerage System in Shimla Town, land belonging to various land owners in village Rajhana , Tehsil and District, Shimla, H.P. was acquired by the State vide Notification dated 20th November, 1997 issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the ‘Act’) ( published in the official gazette on 6th December, 1997) and the Collector’s award No.1 of 1999 passed on 17th March, 1999, awarding the following rates of compensation as market value for the different classification of land: _________________________________________________ Name of Teh.. Name of Mauza Classification Amount: of land. Shimla. Rajhana Kiar Awal Rs.2,23,624.40. Kalahu Awal. Rs.2,23,624.40. Bakhal Awal Rs.2,23,624.40. Banjar Kadeem Rs. 57,635.00. _________________________________________________ Aggrieved by the same, the claimants filed different Land Reference Petitions details of which are as under: L. Ref. No.45-S/4 of 2000. Gorkhia Vs. L.A.C. & Another. RFA.No.77/2004 L. Ref. No.46-S/4 of 2000. Lekh Ram Vs.L.A.C. another. RFA.No.78/2004. L.Ref. No.34-S/4 of 1999. Madan Vs. State of H.P. RFA.No.418/2004. L. Ref. No.23-S/4 of 1999. Ravinder & ors.Vs.State of H.P. RFA.No.419/2004 L. Ref. No.24-S/4 of 1999. Banku Ram Vs.State of H.P. RFA.No.420/2004 4 L. Ref. No.33-S/4 of 1999 Pali Vs. State of H.P. RFA.No.421/2004 L. Ref. No. 35-S/4 of 1999 Gorkhia Vs. State of H.P. RFA.No.422/2004 L.Ref.No.15-S/4 of 2005-04 Jiya Lal and Ors.Vs.State of H.P. RFA.No.102/2008 Land Reference Petition Nos. 45-S/4 of 2000 and 46-S/4 of 2000 were decided by common award dated 22nd December, 2003 by the District Judge, Shimla and Land Reference Petitions No. 34-S/4 of 1999, 23-S/4 of 1999, 24- S/4 of 1999, 33-S/4 of 1999 and 35-S/4 of 1999 were disposed of by a common award dated 12th August, 2004 by District Judge, Shimla. In both these awards, the District Judge, enhanced the compensation payable to the claimants as market value of their land at the rate of Rs.4,00,000/- per bigha in addition to other statutory benefits. Aggrieved by the same, the State has filed the present appeals. No cross-objections have been filed by the claimants. Mr. Jaswal, learned Deputy Advocate General has argued that the market value determined by the court below is much on the higher side as is evident from the sale deeds dated 12th August, 1999 (executed by claimant Gorkhia Ram) and 23rd August, 2002 executed after the passing of the Collector’s award reflecting the market value of the acquired land to be far less than what has been awarded by the court below. 5 Per contra, the learned counsels for the respondents have supported the award for the reasons set out therein. I have heard the learned counsel for the parties and perused the record. In Kanwar Singh Vs. Union of India, (1998 (8) SCC 136), Shaji Kuria Kose Vs. Indian Oil Corporation Ltd., (2001 (7) SCC 650), Chimanlal Hargovinddas Vs. Special Land Acquisition Officer, 1988 (3) SCC 751, ONGC Ltd. Vs. Sendhabhai Vastram Patel and Others (2005 (6) SCC 454), Panna Lal Ghosh & Ors. Vs. Land Acquisition Collector and Ors. (2004 (1) SCC 467) and Viluben Jhalejar Contractor Vs. State of Gujarat (2005 (4) SCC 789), the Court has laid down the following factors for assessing the value of acquired land as under: “True that Courts adopt comparable sales method of valuation of land while fixing the market value of the acquired land. While fixing the market value of the acquired land, comparable sales method of valuation of the land such as capitalization of net income method or expert opinion method. Comparable sales method of valuation is preferred because it furnishes the evidence for determination of the market value of the acquired land at which a willing purchaser would pay for the acquired land if it had been sold in the open market at the time of issue of notification under Section 4 of the Act. However, comparable sales method of valuation of land for 6 fixing the market value of the acquired land is not always conclusive. There are certain factors which are required to be fulfilled and on fulfillment of those factors the compensation can be awarded, according to the value of the land reflected in the sales. The factors laid down inter alia are (1) the sale must be a genuine transaction, (2) that the sale deed must have been executed at the time proximate to the date of issue of notification under Section 4 of the Act, (3) that the land covered by the sale must be in the vicinity of the acquired land and (4) that the size of plot of the land covered by the sales be comparable to the land acquired. If all these factors are satisfied, then there is no reason why the sale value of the land covered by the sales be not given for the acquired land. However, if there is a dissimilarity in regard to locality, shape, site or nature of land between land covered by sales and land acquired, it is open to the court to reduce the compensation for acquired land than what is reflected in the sales depending upon the disadvantages attached with the acquired land. Market value at the time of Notification under Section 4 of the Act is to be seen and while fixing such value of the acquired land, one of the things to be considered is the price at which the parties are ready to sell and purchase the land”. In Bhagwathula Samanna v. Special Tehsildar & Land Acquisition Officer (1991(4) SCC 506), it has been held as under:- 7 “In fixing the market value of a large property on the basis of a sale transaction for smaller property, generally a deduction is given taking into consideration the expenses required for development of the larger tract to make smaller plots within that area in order to compare with the small plots dealt with under the sale transaction. However, in applying this principle of deduction it is necessary to consider all relevant facts. It is not the extent of the area covered under the acquisition which is the only relevant factor. If smaller area within the large tract is already developed and situated in an advantageous position suitable for building purposes and have all amenities such as roads, drainage, electricity, communications etc. then the principle of deduction simply for the reason that it is part of the large tract acquired, may not be justified.” While determining the question as to whether the principle of deduction at the time of determining the market value of large track of land on the basis of exemplar of small piece of land is to be carried out or not, the Apex Court in Atma Singh and others v. State of Haryana and another (2008(2) SCC 568) after considering its earlier decisions rendered in Administrator General of W.B. v. Collector, Varanasi (1988(2) SCC 150), Bhagwathula Samanna v. Special Tehsildar & Land Acquisition Officer (1991(4) SCC 506), Administrator General of W.B. v. Collector, Varanasi (2003(1) SCC 354), Chimanlal Hargovinddas v. Special Land 8 Acquisition Officer (1988(3) SCC 751), Basant Kumar v. Union of India (1996(11) SCC 542), K. Vasundara Devi v. Revenue Divisional Officer(LAO) (1995(5) SCC 426), H.P. Housing Board v. Bharat S. Negi (2004(2) SCC 184) drew a distinction and held that unlike the land acquired by the Housing Board for setting-up of a Colony, the land acquired for the purpose of setting-up a sugar factory, no deduction at all was required to be made and the exemplar of small parcel of land can be considered for determining the market value of the acquired land. The Court held that where the land is to give substantial returns, there is no justification for making any deduction from the price exhibited by the exemplars even if they are of small plots. In Land Reference Petition No. 45-S/4 of 2000, the parties proved on record various documents, being copy of the Collector’s award (Ext.P-3) dated 26th February, 2001 pertaining to acquisition proceedings in village Patyog. Notification under Section 4 of the ‘Act’ was issued on 10th March, 1998 and the public purpose being same i.e. construction of Sewerage Treatment Plant, the Collector awarded different rates for different categories of land ranging from Rs.1,99,834/- to Rs.8,87,264; Award No. 13 of 2003 (Ext.P-4) dated 29th September, 2003 pertaining to acquisition proceedings in village Nehra. Notification under Section 4 of the ‘Act’ was issued on 3rd July,2001 and the public purpose being same, the Collector awarded different 9 rates for different categories of land ranging from Rs. 2,16,500/- to Rs.14,02,924/-; sale deed (Ext.P-2) dated 1st August, 1997, whereby 5 biswas of land situate in village Rajhana was sold for a sum of Rs.1,00,000/- and sale deed (Ext.RW-1/A) dated 13th December, 1996 whereby 5 biswas of land was sold for a sum of Rs.6,000/-. In Land Reference Petition No. 34-S/4 of 1999 the parties have proved on record documents bearing: (i) judgment passed by this Court in RFA.No.208/93 dated 15th December, 1995 (Ext.P-10/A) where land situated in the adjoining village was acquired in the year 1980 and compensation of Rs.1,22,500/- (Rs.1,75,000/- less deduction of 30%) was awarded; (ii) judgment dated 18th January, 1996 passed by the Apex Court in Civil Appeal No. 15056/96 (Ext.PW-10/B) upholding the compensation so awarded and (iii) judgment dated 21st August, 1997 passed by this Court in RFA.No. 175 of 1988 (Ext.PW-10/C) where land situated in village Rajhana was acquired in the year 1985 and compensation @ Rs.1,75,000/- (Rs.2,50,000/- less deduction 30%) was awarded. From the documents placed on record, it is evident that there has been a general trend of increase of prices in the area. From the deposition of Sh.Prem Singh (PW-1), Sh.Lekh Ram (PW-2), Sh.Durga Ram (PW-3), Sh.Jai Dayal (PW-4), Sh.Dinesh Kumar (RW-1), Sh.Karam Chand (RW-2) 10 and Sh.Durga Ram (RW-3) (in RFA.No.77 of 2004) and Sh.Madan Lal (PW-1), Sh.Ravinder (PW-2), Sh.Gorkhia (PW- 3), Sh.Ganga Ram (PW-4), Sh.Paras Ram (PW-5), Sh.Arun Sood (PW-6), Sh.Bharat Singh (PW-7), Sh.Durga Ram (PW- 8), Sh.R.C.Sharma (PW-9), Sh.Pali Ram (PW-10), Sh.Babu Ram (PW-11), Sh.Durga Ram (RW-1) and Sh.Rajinder Kumar (RW-2) (in RFA.No. 418 of 2004), it is evident that the acquired land is situate in village Rajhana which is near Shimla Town where the Shimla Development Authority has constructed a colony by the name of New Shimla. It has also come in evidence that the acquired land had all amenities and facilities . The acquired land was well connected by the road from all directions and was at a distance of about ½ Km. from the commercial complex developed by the Shimla Development Authority. From the oral and documentary evidence (Ext.PJ), it is evident that the land of village Patyog and Nehra are adjacent to village Rajhana. The claimants have also proved the fact that in the adjoining village land was acquired way back in the year 1980 for the purpose of setting up of New Shimla Township and for the said land the compensation awarded to the land owners was enhanced from Rs.40,000/- Per bigha to Rs.1,22,500/- per bigha. This was done so in various appeals filed by the land owners before the High Court and the Apex Court. For acquisition of land in village Rajhana itself land was 11 acquired in the year 1985 and compensation was enhanced from Rs.40,000/- to Rs. 1,75,000/- per bigha by this Court. No doubt, award Ext.P-3 and Ext.P-4 pertaining to the same public purpose are in relation to the adjoining village Patyog and Nehra, but the rates awarded are almost 3-4 times more than what has been awarded in the impugned award. The similarity and contiguity of the land of all the three villages stand proved. For the purpose of determining the market value of the acquired land, the court below has taken into consideration sale deed (Ext.P-2). The claimants’ witnesses have not only proved the consideration of the said exemplar sale deed to be reflective of the true market value but have also proved the fact that the acquired land was almost of similar nature having same potentiality and the use. Taking the said sale deed to be reflective of the true market value and applying the ratio of law laid down by the Division Bench of this Court in Smt.Gulabi Vs. State of H.P. 1998 (1) Shim. L.C. 41, Rs.4,00,000/- per bigha was awarded for the acquired land regardless of classification. . From the record nothing has been shown as to how the said determination is bad in law except for the subsequent sale deed allegedly reflecting the true market value of the acquired land which is less than the amount awarded by the court below. 12 Only sale deed dated 12th August, 1999 has been executed by claimant-Gorkhia. The very same Gorkhia Ram had executed sale deed (Ext.P-2) dated 1st August, 1997 whereby 5 biswas of land was sold for Rs.1,00,000/-. Obviously if the land was sold at a higher price in the year 1997 then it cannot be said that the subsequent sale in the year 1999 would be reflective of the true market value particularly when there is contemporaneous evidence and material on record, including the judgments passed by this Court and the apex Court, to show that the market value of the acquired land was much more than what had been awarded by the Collector. The sale deed dated 12th August, 1999 can also not be a reflective of the true market value of the acquired land for the reason that in the awards (Ext.P-3 and Ext.P-4) for the category ‘Bakhal Awal’ and ‘Kalahu Awal’, the Collector itself has determined the market value at Rs.8,87,264/- and Rs.14,02,920/- per bigha respectively, therefore, the said sale deed cannot be considered to be reflective of the true market value. RFA.No.102 of 2008. In the present appeal, the public purpose for acquisition of the land is the construction of Sewerage Scheme in Shimla Town in Mauza Rajhana but the Notification and the award passed by the Land Acquisition Collector are different. The District Judge has relied upon the award passed in Land Reference Petition No.29-S/4 of 2003. While passing 13 the impugned award dated 11th January, 2008 in Land Reference Petition No. 15-S/4 of 2005-04 titled as Jiya Lal and others Vs. State of H.P. and others, the District Judge referred to and relied upon the award Ext.PW-3/C passed in Land Reference Petition No.34-S/4 of 1999 subject matter of RFA.No.418 of 2004. Since the date of notification issued under Section 4 of the Land Acquisition Act (hereinafter referred to as the ‘Act’) was 20th November, 1997 (published in the official gazette on 3rd July, 2001), the Collector has given enhancement by Rs.30,000/- on a sum of Rs.4,00,000/- per bigha adjudicated in the earlier award. This was done so as the time gap of the notification issued under Section 4 of the ‘Act’ was more than four years. The land is situated in the same village and has same potentiality, use and is of similar nature. Since I have upheld the award (Ext.PW-3/C), I see no reason as to why some amount be not further enhanced for determining the market value in the present case. The Court below has enhanced the market value of the acquired land by Rs.30,000/-. Admittedly, the time gap in the notification issued under Section 4 of the ‘Act’ was more than four years. I see no reason to interfere as the market value of the land is increasing every day and the enhancement is reasonable. For the aforesaid reasons, I find no infirmity in the impugned awards. The court below has considered the 14 entire material in its entirety while arriving at its conclusion. The appeals are accordingly dismissed, so also the pending applications. (Sanjay Karol), Judge. September 1, 2008(R)