IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No. 31 of 2006 with RFA Nos. 17 to 23, 25 to 30 & 32 to 53 of 2006 Reserved on : August 1, 2008 Date of Decision : September 3, 2008 ______________________________________________ RFA No. 31/2006 Collector, LA …Appellant. Versus: Yog Raj and others …Respondents. RFA No. 17/2006 Collector, …Appellant. Versus: Khub Ram …Respondent. RFA No. 18/2006 Collector, LA …Appellant. Versus: Shahdi …Respondent. RFA No. 19/2006 Collector, LA …Appellant. Versus: Thakri …Respondent RFA No. 20/2006 Collector, …Appellant. Versus: Ram Chand …Respondent. RFA No. 21/2006 Collector, …Appellant. Versus: Bhadri …Respondent. RFA No. 22/2006 Collector, …Appellant. Versus: Fateh Chand …Respondent. 2 ______________________________________________ RFA No. 23/2006 Collector, …Appellant. Versus: Nirat Singh …Respondent. RFA No. 25/2006 Collector, LA …Appellant. Versus: Bishwamati …Respondent. RFA No. 26/2006 Collector, LA …Appellant. Versus: Prem Chand …Respondent. RFA No. 27/2006 Collector, LA …Appellant. Versus: Sarla Devi …Respondent. RFA No. 28/2006 Collector, LA …Appellant. Versus: Murti Devi …Respondent. RFA No. 29/2006 Collector, LA …Appellant. Versus: Kallu Devi …Respondent. RFA No. 30/2006 Collector, LA …Appellant. Versus: Nand Lal …Respondent. 3 4 ______________________________________________ RFA No. 32/2006 Collector, LA …Appellant. Versus: Rup Chand …Respondent. RFA No. 33/2006 Collector, …Appellant. Versus: Banwari Lal …Respondent. RFA No. 34/2006 Collector, LA …Appellant. Versus: Bimla Devi …Respondent. RFA No. 35/2006 Collector, LA …Appellant. Versus: Jagdish Chand …Respondent. RFA No. 36/2006 Collector, …Appellant. Versus: Bhim Chand …Respondent. RFA No. 37/2006 Collector, …Appellant. Versus: Dole Ram …Respondent. RFA No. 38/2006 Collector, …Appellant. Versus: Hemat Kumar …Respondent. RFA No. 39/2006 Collector, …Appellant. Versus: Tulju Devi …Respondent. 5 ______________________________________________ RFA No. 40/2006 Collector, …Appellant. Versus: Nimtu Devi …Respondent. RFA No. 41/2006 Collector, …Appellant. Versus: Devi Ram …Respondent. RFA No. 42/2006 Collector, …Appellant. Versus: Amlu Devi …Respondent. RFA No. 43/2006 Collector, …Appellant. Versus: Sunil Kumar …Respondent. RFA No. 44/2006 Collector, …Appellant. Versus: Falma …Respondent. RFA No. 45/2006 Collector, …Appellant. Versus: Bantu Devi …Respondent. RFA No. 46/2006 Collector, …Appellant. Versus: Khub Ram …Respondent. RFA No. 47/2006 Collector, …Appellant. Versus: Moti Ram …Respondent. 6 ______________________________________________ RFA No. 48/2006 Collector, …Appellant. Versus: Tulju Devi …Respondent. RFA No. 49/2006 Collector, …Appellant. Versus: Uttam Singh …Respondent. RFA No. 50/2006 Collector, …Appellant. Versus: Kundli …Respondent. RFA No. 51/2006 Collector, …Appellant. Versus: Keshi Devi …Respondent. RFA No. 52/2006 Collector, …Appellant. Versus: Sonam Angrup …Respondent. RFA No. 53/2006 Collector, …Appellant. Versus: Thakri …Respondent. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellant(s): Mr. Rajnish Maniktala, Advocate. (in all the RFAs) For private respondent(s): S/Shri Sunil Mohan Goel, and Ramesh Thakur, Advocates For the State: Mr. R. K. Bawa, Advocate General with Mr. Vivek Thakur, Addl. A. G. 1 Whether reporters of Local Papers may be allowed to see the judgment? 7 Sanjay Karol, Judge. All the appeals arise out of the common Award dated 30.9.2005 passed by the Addl. District Judge, Fast Track, Kullu, H. P. in various Land Reference Petitions, which were clubbed together and disposed of as such. Since the question in all the appeals is common, therefore, they are being heard and disposed of together. For the purpose of setting-up of the Parbati Hydro Electric Project, Bhunter, Distt. Kullu, H. P., amongst others the claimants’ land situated in Phati Dhougi, Kothi Bunga, Sub Tehsil Sainj, Distt. Kullu, measuring 68-19-0 bighas was acquired vide Notification dated 5.12.2000 issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’) and Award No.4 of 2002 dated 4.1.2002. Even though the claimants/land owners claimed compensation @ Rs.10 lacs per bigha but, however, the Collector awarded different rates for different classifications of land on the basis of one year average market value determined by the revenue officials of the Revenue Department of the State of H. P. for the period 5.12.1999 to 4.12.2000. The total land acquired with classifications and rates awarded in Village Dhougi are as under:- Sr. Classification Area Market Price No of Land Per Bigha ______________________________________________ (1) (2) (3) (4) 1. Bagicha 03-16-00 2. Ropa Awal 19-01-00 2,01,750.00 8 3. Ropa Dom 19-10-00 1,85,610.00 4. Ropa Som 15-17-00 1,66,780.00 5. Bathal Aval 00-09-00 1,02,220.00 6. Bathal Dom 00-13-00 53,800.00 7. Bathal Som 03-12-00 40,350.00 8. Banjar Kadim 04-05-00 5,380.00 9. Abadi 01-09-00 10. Gair Mumkin Ghrat 00-03-00 11. Gair Mumkin Pathar 00-04-00 Total Land : 68-19-00 Aggrieved by the same, the claimants filed reference petitions under Section 18 of the Act, which were registered as under:- Sr. No. Ref.Petition No. Name of Party 1. 124/03 Khub Ram and another vs. Collector & others 2. 125/03 Shahdi and another vs. Collector & others 3. 40/04 Thakri vs. Collector and others 4. 46/04 Ram Chand and another vs. Collector & others 5. 54/04 Bhadri vs. Collector & others 6. 55/04 Fateh Chand vs. Collector & others 7. 57/04 Nirat Singh vs. Collector & others 8. 58/04 Dina Nath vs. Collector & others 9. 59/04 Bishwamati vs. Collector & others 10. 60/04 Prem Chand vs. Collector & others 11. 61/04 Sarla Devi vs. Collector & others 12. 62/04 Murti Devi vs. Collector & others 13. 63/04 Teja Singh vs. Collector & others 14. 64/04 Kallu Devi vs. Collector & others 15. 65/04 Nand Lal vs. Collector & others 16. 66/04 Yog Raj & Others vs. Collector & others 17. 67/04 Rup Chand & Ors.vs. Collector & others 18. 68/04 Banwari Lal & others vs. Collector & Ors. 19. 69/04 Bimla Devi & others vs. Collector & Ors. 20. 70/04 Jagdish Chand & anr. v. Collector & Ors. 21. 71/04 Bhim Chand vs. Collector & Ors. 22. 76/04 Dole Ram vs. Collector & Ors. 23. 199/04 Hemant Kumar vs. Collector & Ors. 24. 200/04 Tulju Devi vs. Collector & Ors. 9 25. 201/04 Nimtu Devi vs. Collector & Ors. 26. 202/04 Devi Ram & others vs. Collector & Ors. 27. 203/04 Amlu Devi vs. Collector & Ors. 28. 204/04 Sunil Kumar vs. Collector & Ors. 29. 205/04 Falza vs. Collector & Ors. 30. 206/04 Santo Devi vs. Collector & Ors. 31. 207/04 Khub Ram vs. Collector & Ors. 32. 208/04 Moti Ram vs. Collector & Ors. 33. 209/04 Tulju Devi vs. Collector & Ors. 34. 210/04 Uttam Singh vs. Collector & Ors. 35. 211/04 Kundli vs. Collector & Ors. 36. 212/04 Keshi Devi vs. Collector & Ors. 37. 213/04 Sonam Angrup vs. Collector & Ors. 38. 214/04 Thakri vs. Collector & Ors. For the purpose of framing of issues, recording of evidence and avoiding passing of conflicting awards, on the request of the learned counsel for the parties, the land reference petitions were consolidated and agreed to be disposed of as such vide order dated 24.11.2004 passed by the lower Court. The parties led their evidence and based on oral and documentary evidence, the land reference petitions were decided by a common award dated 30.9.2005, whereby the market value of the acquired land was assessed to be Rs.20,000/- per biswa irrespective of the nature, kind or classification of the acquired land and the State was directed to pay the enhanced market value in accordance with the provisions of the Act. Hence, the present appeal. Mr. Rajnish Maniktala, learned counsel for the appellants has contended that exemplar of small parcels of land could not have been taken into consideration while determining the market value of huge chunk of acquired land unless and until there is evidence that no transfer of land took place at the time 10 of acquisition; in any event, there is no evidence on record (oral and documentary) to show/establish that the land sold through the exemplar sale deeds is identical or similar in nature, classification and category to that of the acquired land. Also there is nothing on record to prove that similar amenities were available to both the lands. In support of his contentions, he has relied upon the following decisions:- K. Posayya & others v. Special Tehsildar (1995(5) SCC 233) Tarlochan Singh & anr. v. State of Punjab & ors. (1995(2) SCC 424), Special Land Acquisition Officer v. Sidappa Omanna Tumari & ors. (1995 Supp.(2) SCC 168), Land Acquisition Officer& ors. v. Male Pullamma & ors. (1996.(8) SCC 247), Land Acquisition Officer v. Sreelatha Bhoopal & Anr. (1997(9) SCC 628), Church of South India Trust Assn. v. Land Acquisition Officer & anr. (2006 (9) SCC 676), Union of India and another v. Smt. Shanti Devi and others (1983(4) SCC 542), Federal Bank Ltd. v. Sagar Thomas & others (2003(10) SCC 733), to contend that exemplar of small parcels of land cannot be considered for determining the market value of large chunk of land; Cement Corpn. of India Ltd. v. Purya and others (2004(8) SCC 270), Pattammal and others v. Union of India and another (2005(13) SCC 63), to contend that Vendor and Vendee be not examined to prove the Sale Deeds; Executive Director v. Sarat Chandra Bisoi and another (2000(6) SCC 326) to contend that if no comparable sales are on record then the market value is to be determined on the basis of capitalization and; 11 Basavva and others v. Spl. Land Acquisition Officer and others (1996(9) SCC 640) deduction should be upto 65% of the market value determined. Learned counsel for the respondents has supported the award for the reasons stated therein and has referred to and relied upon the following decisions:- Atma Singh and others v. State of Haryana and another (2008(2) SCC 568), Brij Lal & Anr. v. Land Acquisition Collector (2008(1) Cur. L.J. 466), RFA Nos. 256 & 257 of 2002 decided on 22.4.2008, of this Court. I have heard learned counsel for the parties and also perused the record. To prove their case, claimants examined S/Shri Kishori Lal (PW-1), Prem Chand (PW-2) & Prem Chand s/o Anant (PW-3) who have proved and exhibited Sale Deeds Ext.PW-2/A, Ext.PW-3/A and also tendered in evidence Sale Deed Ext.PB. The respondent-State (appellants herein) examined S/Shri Mehar Chand (RW-1) Kanungo & Prabhat Singh (RW-2), Registration Clerk of Sub Tehsil, Sainj District Kullu to prove Sale Deeds Ext. RB and Ext.RC. Copies of the one year average market value for the period 5.12.1999 to 4.12.2000, Ext.RW-1/A and RW-1/B, were tendered in evidence by the respondents. It is pertinent to notice that Award No. 4 of 2002 passed by the Collector is based only on the said annual average market value fixed by the revenue authorities. 12 Shri Kishori Lal (PW-1) has deposed that the acquired land falls in Village Phati Dhougi and the same abuts the Sainj Bazar, which is a hub of the business Centre for whole of the Sainj Valley. The boundary of the Himalayan National Park which invites lot of tourists is adjacent to the Sainj Bazar. There are all amenities and the area has a great potential of growth. There is a Senior Secondary School, Primary Health Centre, Tehsil, Rest House and a Hotel in Sainj Bazar. Sainj Bazar is having a population of 5000 to 6000. On the acquired land, a hotel was to be constructed. The entire acquired land is similar in nature, quality, classification and fertility. According to him, Shri Prem Chand sold his land in Phati Dhougi to one Shri Krishan Lal for a sum of Rs.45,000/- per biswa and the fertility and quality of the acquired land and the land covered by the sale deeds is same. He has denied the suggestion that the claimants were aware of the fact that their land would be acquired for the purpose of setting up the project as the then Prime Minister had inaugurated the project and the sale deeds were got executed in the year 2000 with the oblique purpose of creating an evidence of sale of land at inflated prices. It has been denied that the land is barren having shrubs and bushes. From his statement, it is clear that Sainj is at a distance of approx. 17 kms. from Aut, a popular destination on the National Highway. He has denied the suggestion that the value of the acquired land is Rs.2000/- to Rs.3500/- per biswa. 13 Shri Prem Chand (PW-2) has proved on record Sale Deed Ext.PW-2/A and has further proved that the said land is just at a distance of about 20 to 25 mtrs. from the acquired land. He has also proved that both the lands are used for agricultural purpose. He has denied the suggestion that the consideration of Sale Deed Ext.PW-2/A is not the real market value and the same was enhanced in anticipation that the land in the area would be acquired as a consequence of the inauguration of the project by the then Prime Minister in the year 1999. To the said effect is also the statement of PW-3, who has also proved on record Sale Deed Ext.PW-3/A. He has proved that the land belonging to Shri Kishori Lal is at a distance of about 200 mtrs. from the agricultural land covered by the said Sale Deed. In terms of Ext.PW-2/A dated 15.9.2000, two biswas of land situated in village Phati Dhougi was sold for a sum of Rs.50,000/- per biswa. Ext.PW-3/A is a sale deed dated 14.9.2000 whereby 0-1-10 biswas of land was sold for a total consideration of Rs.45,0000/- i.e. Rs.30,000/- per biswa and Ext.PB is the Sale Deed dated 14.9.2000, whereby two biswas of land is sold for a total consideration of Rs.90,000/- i.e. Rs.45,000/- per biswa. The similarity between the acquired land and land sold by the exemplar Sale Deeds stand proved on record. The nature, the classification and the category of the land, the 14 purpose for which they were put to use, having all amenities and facilities stands proved. The land in question had great potential is evident from the fact that it is situated next to the great National Himalayan Park, which invites lot of tourists. The acquired land is just 17 kms. away from the National Highway and is part of the Kullu valley, which is a hot destination for tourists. The land in question situated in the commercial hub, in any event, had a great potential of being developed commercially from all angles. In any case, the same being fertile as such was used for agricultural purpose. Shri Mehar Chand (RW-1) is the Kanungo who placed on record the copies of the annual average market value Ext.RW-1/A, Ext.RW-1/B and Ext.RW-1/C of the relevant period. According to him, the average value is determined after taking into account the average of all the sales recorded in the entire area of 10 kms. comprising of Phati Dhougi. He has admitted that Sainj Bazar is the commercial hub and business centre of the entire valley. He admitted that he had physically not seen the acquired land. Shri Prabhat Singh (RW-2) proved sale deeds Ext.RB & Ext.RC but, however, after checking the record admitted that on 14.9.2000 in Phati Dhougi, two biswas of land was sold for a sum of Rs.90,000/- (Rs.45,000/- per biswa). He has also admitted that Sainj is the commercial hub and business centre of the valley and the acquired land is just at a distance of 200 to 15 300 mtrs. from the boundary of Sainj Bazar where 8 to 10 shops have been constructed. Ext.RA is Sale Deed dated 29.9.2000, whereby 16 biswas of land stood sold for a sum of Rs.55,000/- i.e. Rs.3,440/- per biswa. Ext.RB dated 7.9.2000 records sale of 5 biswas of land for a total sum of Rs.6,000/- i.e. Rs.1200/- per biswa. Sale Deed Ext.RC dated 23.10.2000 pertains to a different Phati i.e. Phati Suchain, whereby 8 biswas of land is stated to be sold at Rs.8000/- i.e. Rs.1000/- per biswa. In my view Sale Deed Ext.RC cannot be considered as it pertains to a different Phati. Sale Deed Ext.RB cannot be considered for the reason that there is nothing on record to prove that the land covered by the said sale deeds is of similar nature, category, classification, quality and having similar amenities. That apart even as per annual average market value Ext.RW-1/A and Ext.RW-1/B, the market value determined for the lowest category of land is Rs.5380/- per biswa for the year 5.12.1999 to 4.12.2000. Thus, the sale deeds cannot be held to be reflecting the true market value of the acquired land. The average market value Ext.RW-1/A, Ext.RW-1/B & Ext.RW-1/C, in my view, in the present case cannot be considered for determining the market value for the reason that (i) the same is prepared by the revenue officials for the purpose of collection of stamp duty; (ii) they are reflective of the average sale price of the entire revenue estate and not specific to a 16 particular area. There is nothing in the statement of RW-1 indicating the potentiality and the similarity of the acquired land with the land forming part of the sales considered while arriving at the yearly average market value. It cannot be said that the exemplar sale transactions were executed to inflate the market value as in the year 1999 only the foundation stone of the Project had been laid and the exact area and the location where the land was to be acquired for the project had neither been identified nor notified. At that time, it was not in contemplation that the land in question was to be acquired. The Apex Court in Chimanlal Hargovinddas v. Special Land Acquisition Officer 1988(3) SCC 751 has held as under:- “4. The following factors must be etched on the mental screen: (1) A reference under Section 18 of the Land Acquisition Act is not an appeal against the award and the court cannot take into account the material relied upon by the Land Acquisition Officer in his award unless the same material is produced and proved before the court. (2) So also the award of the Land Acquisition Officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the court hearing the reference. It is merely an offer made by the Land Acquisition Officer and the material utilized by him for making his valuation cannot be utilized by the court unless produced and proved before it. It is not the function of the court to sit in appeal against the award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an appellate court. (3) The court has to treat the reference as an original proceeding before it and determine the market 17 value afresh on the basis of the material produced before it. (4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the court. Of course the materials placed and proved by the other side can also be taken into account for this purpose. (5) The market value of land under acquisition has to be determined as on the crucial date of publication of the notification under Section 4 of the Land Acquisition Act (dates of notification under Sections 6 and 9 are irrelevant). (6) The determination has to be made standing on the date line of valuation (date of publication of notification under Section 4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price. (7) In doing so by the instances method, the court has to correlate the market value reflected in the most comparable instance which provides the index of market value. (8) Only genuine instances have to be taken into account. (Sometimes instances are rigged up in anticipation of acquisition of land). (9) Even post-notification instances can be taken into account (1) if they are very proximate, (2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects. (10) The most comparable instances out of the genuine instances have to be identified on the following considerations: a. proximity from time angle b. proximity from situation angle (11) Having identified the instances which provide the index of market value the price reflected therein may 18 be taken as the norm and the market value of the land under acquisition may be deducted by making suitable adjustments for the plus and minus factors vis-à-vis land under acquisition by placing the two in juxtaposition. (12) A balance-sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchaser would do. (13) The market value of the land under acquisition has thereafter to be deducted by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors. (14) The exercise indicated in clauses (11) to (13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors:- (for table see below) Plus factors Minus factors 1. Smallness of size 1. Largeness of area. 2. proximity to a road 2. situation in the interior at a distance from the road 3. frontage on a road 3. narrow strip of land with very small frontage compared to depth 4. nearness to developed area 4. lower level requiring the depressed portion to be filled up. 5. regular shape 5. remoteness from developed locality 6. level vis-à-vis land under acquisition 6.some special disadvantageous factor which would deter a purchaser. 7. special value for an owner of an adjoining property to whom it may have some very special advantage.” 19 (15). The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds. cannot be compared with a large tract or block of land of say 10,000 sq.yds. or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open pace, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at n appropriate rate ranging approximately between 20 per cent to 50 per cent to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be locked up, will be longer or shorter and the attendant hazards. (16) Every case must be dealt with on its own fact pattern bearing in mind all these factors as a prudent purchaser of land in which position the judge must place himself. (17) These are general guidelines to be applied with understanding informed common sense.” Undoubtedly, the acquired land is a large chunk of land and the Sale Deeds Ext.PW-2/A and Ext.PW-3/A pertain to small parcel of land. In the impugned award , the average of these two sale transactions has been considered while arriving at a market value of Rs.20,000/- per biswa. No doubt, in the decision referred to by the learned counsel for the appellants and more particularly in Ranvir Singh and another v. Union of India (2005(12) SCC 59), it has been held that sale price in respect of small piece of land cannot be based for determination of the 20 market value of large chunk of land but, however, in a subsequent decision i.e. Atma