IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No.88 of 2003 along with RFA Nos.89, 90 & 91 of 2003. Date of Decision : April 24, 2008 RFA No. 88 of 2003 Union of India …Appellant v. Gurnima & another …Respondents RFA No. 89 of 2003 Union of India …Appellant v. Govind Singh & another …Respondents RFA No. 90 of 2003 Union of India …Appellant v. Urgain & others …Respondents RFA No. 91 of 2003 Union of India …Appellant v. Amar Singh & another …Respondents Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting? 1 Yes (In all the RFAs) For the appellant : Mr. Sandeep Sharma, Asstt. Solicitor General of India. For private respondents: Mr. B. C. Negi, Advocate For respondent No.2 : Mr. Vivek Thakur, Addl. A. G. with Ms. Shubh Mahajan, Dy. A.G. Sanjay Karol, J. (oral) The present appeals are being disposed of by a common judgment for the reason that the land of private 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 respondents (claimants) was acquired by the same Notifications and award issued under the provisions of the H.P. Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’). Even the evidence led by the parties is same and apart from the claims their remaining witnesses are also same. The State has also examined the same witnesses in all the appeals. For the public purpose, namely, extension/widening of Khab-Namgia-Dogri-highway different parcels of the claimants land were acquired vide Notification dated 6.10.1997 published in the H.P. State Gazette on 1.11.1997 under Section 4 of ‘the Act’. In terms of the Collector’s award No.LA-RK-11/96, dated 5.8.1998, the market value of the claimants acquired land was assessed as under:- Sr. No. Classification of land Rate of land per centiare 1. Bagicha Kalahu Awal Rs.13.25 2. Bagicha Kalahu Doyam Rs.12.36 3. Kalahu Awal Rs. 4.42 4. Banjer Kadeem Rs.0.44 5. Ghasni Rs.0.35 Aggrieved by the same, the claimants preferred different Land Reference Petitions under Section 18 of the Act. A Chart showing the name of the claimants, RFAs and also the date of award passed by the Court below is given as under:- Sr.No Name of the Reference Petitioners Date of decision of Reference Petition RFA Nos. 1. Gurnima v. LAC & another (LRP No. 24 28.6.2002 88 of 2003 3 of 1999) 2. Govind v. LAC & another (LRP No. 23 of 1999) 28.6.2002 89 of 2003 3. Urgain v. LAC & others (LRP No. 22 of 1999) 28.6.2002 90 of 2003 4. Amar Singh v. LAC & another (LRP No. 20 of 1999) 28.6.2002 91 of 2003 Parties have examined the following witnesses:- Shri Gurnima (PW-1), Shri Hukam Lal (PW-2) and Shri Bhoop Ram (RW-1) (in RFA No. 88/2003), Shri Govind Singh (PW-1), Shri Gurnima (PW-2), Shri Hukam Lal (PW-3) and Shri Bhoop Ram (RW-1) (in RFA Nos. 89/2003 & 90/2003) & S/Shri Amar Singh (PW-1), Shri Gurnima (PW-2), Shri Hukam Lal (PW- 3) and Shri Bhoop Ram (RW-1) (in RFA No. 91/2003). In order to establish their claim, the claimants also placed on record a copy of the Award No. 36/97 (Ext.PA) passed by the Collector, Land Acquisition, NJPC Ltd. Jhakri. The respondent-State also placed on record the average market price of land of revenue estate Danmochhe for the period 6.10.1996 to 5.10.1997. Appreciating the material on record, the Court below came to the conclusion that in District Kinnaur there were no comparable sales transaction which had taken place in revenue estate Namgia and therefore, relied upon Award Ext.PA to assess the market value of the acquired land at Rs.61.90 per centiare i.e. Rs.45,000/- per bigha irrespective of classification of land. 4 The agreed sale price (Ext.RW-1/A) was made basis as the same was not of any sale transaction which had taken place in the previous years. Assailing the impugned award, the learned Assistant Solicitor General has argued that the compensation awarded is on the higher side and in any event the same could not have been awarded with regard to all categories of land irrespective of their classification. Per contra, Shri B. C. Negi, learned counsel for the respondents has supported the award for the reason set out therein. I have heard the learned counsel for the parties and also perused the material on record. The fact that the possession of the claimants’ land was actually taken in the year 1971 is undisputedly borne out from the record. The claimants land was acquired only in the year 1997 when the proceedings under ‘the Act’ were initiated. The claimants have been deprived of the use of their constitutional rights to enjoy the property between the year 1971 and 1997 and the State has been enjoying the same. It is also undisputed that in District Kinnaur of Himachal Pradesh, no outsider can purchase the land. Even the local residents cannot sell the same to non-residents. Kinnaur being a tribal area sale can take place only between natives and even a bonafide Himachali cannot buy land. Through the sworn 5 testimony of Shri Gurnima (PW-1) in Land Ref. Petition No. 24 of 1999 and (PW-2) in Land Ref. Petitions No. 23, 22 & 20 of 1999, it has come on record that the land in question was fit for agriculture, horticulture and housing and the claimants had planted apple plants on the acquired land which were of three years of age. Shri Hukam Lal (PW-2) in Land Ref. Petition No. 24 of 1999 and (PW-3) in Land Ref. Petitions No. 23, 22 & 20 of 1999, has deposed that his land is adjoining to the acquired land and he has been putting it to agricultural use and earning income from there. Importantly, there is no cross-examination on this point by the State. From the sworn testimony of this witness it has also been proved that in District Kinnaur, private land holdings are meager and no one sells the land as sale of holding is not considered good. It has also been proved that the land in question is abutting the highway and the acquired land was used for the purposes of widening of the road. Therefore, the acquired land had great potential of the use for agricultural/ other purpose. Ext.PA is the award passed by the Collector wherein the claimants were awarded compensation @61.90 per centiare for Bagicha Bakhal Doem category of land. The land was acquired vide Notification dated 28.4.1995, for construction of Colony and road at revenue estate Punspa, Tehsil Nichar, District Kinnaur. PW-1 has deposed that the holding of village Namgia, under acquisition is similar in all respects with the holdings of 6 acquired land of UP Mohal Punspa. Importantly, there is no cross-examination on this point. The respondents’ witnesses in fact have advanced and supported the case of the claimants. In his cross-examination Shri Bhoop Ram (RW-1), has admitted as under:- “It is correct that no one would sell even his Banjar Kadeem or barren land in Kinnaur District at the rate of Rs.300/- per bigha at the time of issue of notification under Section 4 of the Act. It is correct that the market value of the land under acquisition at the time of issue of notification under Section 4 of the Act could not be below Rs.50,000/- per bigha. Outsiders cannot purchase land in Kinnaur District. Therefore, sale transactions of sale of land are few and far between in Kinnaur District.” Thus, in the absence of any comparable sale transaction, in my view, Award Ext.PA can be relied upon to determine the market value of the acquired land. The same is approximate to the time of acquisition in question. Learned counsel for the appellant argued that the average sale price Ext.RW-1/A should be accepted as basis for determining the market value of the acquired land for the reason that PW-1 has admitted that the land of revenue estate Danmochhe is better in quality, fertility and potentiality when compared with the acquired land. In my view, the Court below has rightly not considered the same to be the basis for determining the market value for the reason that average sale 7 price is not determinative of the market value of the acquired land as the same is prepared under the provisions of H.P. Land Revenue Act for the purposes of Collection of land revenue. In any event, while proving the same RW-1 has admitted that no sale had taken place in the revenue estate of Danmochhe during the period of acquisition. Therefore, in the absence of any sale transaction, Ext.RW-1/A cannot be made basis for determining the fair and reasonable market value of the acquired land. There is yet another reason as to why the same ought not to have been considered. In Village Danmochhe landless persons were rehabilitated and settled under various schemes promoted by the State from time to time. Due to statutory prohibition no sale could take place within 20 years of grant. Therefore, the average sale price of this village would not be determinative of the fair market value of the acquired land in District Kinnaur. It has come on record that the entire holding of Kinnaur District was comparable in all respects and the acquired land was comparable with the land of revenue estate Pansupa which is covered by Award Ext.PA. The petitioner’s land was situated on a highway and had potential of being used for agriculture/horticulture purpose. Judicial notice can be taken of the fact that in District Kinnaur large number of Hydro Electric Power Projects are being set up and large tracks of land is being acquired for the purpose of establishing these projects. There is an overall growth and development taking place in these areas. 8 It is true that sale is restrictive but land is also scarce. The value and prices of land are otherwise on the increase. The claimants have deprived of their land from the year 1971 upto 1997. In my view, the Court below has correctly assessed the market value of the acquired land while determining the total compensation due and payable to the claimants. The land was acquired for the purposes of widening of the road. The entire land has been utilized for the said purpose. The land was not acquired for the purposes of colonizing and, therefore, no development whatsoever was to take place necessitating deduction while determining the fair market value of the acquired land. Therefore, I see no error in the award passed by the Court below. The claimants would be entitled to compensation regardless of the category and classification of the acquired land. For the aforesaid reasons, the appeals are dismissed. Pending applications, if any, also stand dismissed. ( Sanjay Karol ), Judge. April 24, 2008 (rana)