IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 102 of 1999. Judgement reserved on: 28.12.2007. Date of decision: 25.02.2008 . Saraswati Devi and ors. ….. Appellants. Vs. State of H.P. and ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Ramakant Sharma, Advocate. For the Respondents : Mr. M.L.Chauhan, Addl. Advocate General for respondents No. 1 and 2. Mr. G.D.Verma, Sr. Advocate with Mr. B.C.Verma, Advocate for respondents No. 3 and 4. Kuldip Singh, Judge. This appeal has been directed against the award dated 28.11.1998 passed by the learned District Judge, Solan in Land Reference No. 48-NS/4 of 94/92, rejecting the claim of appellants for enhancement of compensation for land and fruit trees and also awarding less compensation for house which was situated on the acquired land. Whether the reporters of the local papers may be allowed to see the Judgment? …2… 2. The facts in brief are that land measuring 1 bigha 17 biswas of Beli Ram comprised in Khasra No.199/1 and 200/1 min, Khata No.17, Mouza Kahala, Tehsil Kandaghat, was acquired by respondents 1 and 2 for public purposes for construction of Jubbar Hatti Airport. The notification under Section 4 of the Land Acquisition Act, 1894 (for short the act) was published in H.P.Rajpatra on 4.6.1988. The Collector passed award No.9/89 on 31.5.1989 and awarded Rs.12,100/- per bigha for Kuhli Dom, Rs.720 for trees and Rs.5,000/- for house. Beli Ram predecessor-in-interest of the appellant was not satisfied with the award, therefore he filed reference petition under Section 18 of the Act. 3. The following issues were framed in reference petition :- 1. What was the market value of the land in question as on the date of issuance of notification under Section 4 of the Land Acquisition Act? On parties. 2. To what amount of enhanced compensation, if any, is the petitioner entitled to, in respect of the acquired land? OPP. 3. Whether there were any trees on the acquired land, if so, whether adequate compensation has not been awarded thereof? OPP 4. If issue No.3 is proved, to what amount of enhanced compensation is the petitioner entitled to? OPP 5. Whether two storeyed house was buried and damaged due to fall of debris, if so, its effect, and whether the petitioner is entitled to any amount of compensation thereof? OPP. 6. Whether the property acquired has fallen to the share of the petitioner alone and the respondents No. 3 and 4 have no right, title or interest over it, if so, its effect? OPP. 7. Whether respondents No. 3 and 4 are owners of the acquired property to the extent of ½ share and …3… they are also entitled to the enhanced compensation? OPR 8. Relief. 4. The learned District Judge decided the reference petition vide impugned award dated 28.11.1998 and enhanced the compensation for house standing on acquired land from Rs.5,000/- to Rs.20,000/-. Thus giving an increase of Rs.15,000/- alongwith other statutory payments. The ld. District Judge did not allow any enhancement for land and trees. Hence this appeal. 5. I have heard Mr. Ramakant Sharma, learned counsel for the appellants, learned Additional Advocate General for respondents No. 1 and 2 and Mr. G.D.Verma, Senior Advocate for respondents 3 and 4 and gone through the record. 6. The learned counsel for the appellants has submitted that for construction of Jubbar Hatti Airport respondents No. 1 and 2 have acquired different parcels of land under different notifications issued under Section 4 of the Act. In many cases more compensation has been paid to the land owners, but in the present case the market value of the land, fruit bearing trees, house of the appellants has been assessed on the lower side. He has submitted that the appellants are entitled to market rate of acquired land at Rs.2,08,620 per bigha as awarded in some other cases for acquiring land for Jubber Hatti Airport. The learned Additional Advocate General has supported the impugned award. 7. PW-1 Surender Mohan has stated that from Khasra nos. 199 and 200 some land was acquired for construction of Jubber Hatti …4… Airport. The compensation awarded is less, they are entitled to compensation at the rate of Rs.1 lakh per bigha. There were 35 fruit bearing trees of Apple, Plum and Citrus on the acquired land. The compensation for the fruit trees has been awarded less. They are entitled to atleast Rs.25,000/- compensation for fruit bearing trees. There was two storeyed house on Khasra No. 119 which was of stone and slate roof. The compensation for the house has been awarded on the lower side. The compensation for the house should have been at least Rs.1 lakh. In cross-examination he has stated that name of their village is Kahala and the adjoining village is Kot and Nataila. No sale transactions took place in their village. He has shown his ignorance that the compensation has been awarded as per the sale transactions of the adjoining villages. PW-2 Sewak Ram has stated that village Kahala is below Jubber Hatti Airport. The market value of the house of Beli Ram was Rs.1 lakh. There were fruit trees also on the acquired land. 8. RW-1 Bhawani Singh, Naib Tehsildar (Industry), Directorate of Industry, Shimla, has stated that land measuring 17 biswas of Beli Ram was acquired for construction of Airport and he was paid compensation. No sale transaction took place in the area where the land in question is situated. Therefore, market value of the land in question was assessed on the basis of market value of the adjoining area. There was a Khokha of Beli Ram on the acquired land and he was paid compensation. There were 16 plum trees on the acquired land and compensation for the fruit trees has also been paid as assessed by the horticulture department. In cross- …5… examination he has stated that 100-150 bighas land was acquired for construction of Airport. 9. The learned counsel for the appellant has relied upon judgement dated 23.4.2007 in RFA No.279 of 1998 of this Court, for assessing the market value of the acquired land. In RFA No.279 of 1998 the land situated in village Nataila was acquired. He has submitted that for acquiring land involved in RFA No.279 of 1998 the notification under Section 4 of the Act was issued on 30.6.1990 and the land was acquired for construction of Jubbar Hatti Airport. In that case the Collector made the award No. 21/93 on 7.8.1993. The learned counsel for the appellants has submitted that it is the case of the respondents 1 and 2 that no sale transaction took place in the area where the acquired land is situated, therefore, the market value of the acquired land was assessed on the basis of the market value of the adjoining land. He has further submitted that PW-1 has specifically stated that the acquired land is in village Kahala and the adjoining villages are Kot and Nataila. This statement of PW-1 has not been questioned by respondents No. 1 and 2 in his further cross-examination. The learned Single Judge in judgement dated 23.4.2007 in RFA No.279 of 1998 has approved compensation at Rs.2,08,620/- per bigha for land acquired in village Nataila. The land in Mauja Nataila was acquired on the basis of the notification under Section 4 of the Act published in H.P.Rajpatra on 30.6.1990. In the present case, notification under Section 4 was published in the Rajpatra on 4.6.1988, in other words, in the present case the notification under Section 4 was published nearly two years prior to …6… the notification under Section 4 of the Act for acquiring the land in Mauja Nataila. 10. In Krishna Yachendra Bahadurvaru vs. The Special Land Acquisition Officer, City Improvement Trust Board, Bangalore and others, AIR 1979 Supreme Court 869, it has been held:- We are conscious that this process of determination of market value adopted by us may savour of conjecture or guess, but the estimation of market value in many cases must depend largely on evaluation of many imponderables and hence it must necessarily be to some extent a matter of conjecture or guess. In view of the law laid down by the Hon’ble Supreme Court some conjecture and guess work is also permissible in assessing the market value of the acquired land. It is the case of respondents 1 and 2 that no sale instances were available in village Kahala where the acquired land is situated, therefore, sale instances of the adjoining villages were taken into consideration for assessing the market value of the acquired land. 11. In ONGC Ltd. vs. Sendhabhai Vastram Patel and others, (2005) 6 Supreme Court Cases 454, the Hon’ble Supreme Court has held that in the absence of direct evidence recourse to the other methods, such as, judgements, awards passed in respect of acquisition of lands made in the same village and in neighbouring villages is permissible. Paras 11 and 15 of the judgement are as follows:- …7… While determining the amount of compensation payable in respect of the lands acquired by the State, indisputably, the market value therefore has to be ascertained. Although, there exist different modes for arriving at the market value for the land acquired; the best method, however, as is well known would be the amount which a willing purchaser of the land would pay to the owner of the land as may be evidenced by the deeds of sale. In the absence of any direct evidence on the said point, the court may take recourse to other methods viz. judgements and awards passed in respect of acquisition of lands made in the same village and/or neighbouring villages. Such a judgment and award in the absence of any other evidence like deed of sale, report of expert and other relevant evidence, however, would have only evidentiary value. Instances of sale in respect of the similar land situated in the same village and/or neighbouring villages should have been taken as guiding factors by the Reference Judge as also by the High Court. In the absence of any better evidence, the Reference Judge as also the High Court could have made addition in the sale prices for the land as evidenced by the said deeds of sale. 12. In Chimanlal Hargovinddas vs. Special Land Acquisition Officer, (1988) 3 Supreme Court Cases 751, the Hon’ble Supreme Court has held that market value of the land under acquisition has to be determined as on the crucial date of publication of notification under Section 4 of the Act, even post notification instances can be taken into account if they are very proximate; genuine and the acquisition itself has not motivated the purchaser to pay a higher price on account of resultant improvement in development prospects. …8… In State of Uttar Pradesh vs. Major Jitendra Kumar and others, (1982) 2 Supreme Court Cases 382, the Hon’ble Supreme Court has approved the reliance of sale deed by the High Court which was three years later than the notification under Section 4 of the Act. 13. There is no evidence on record that because of the acquisition in the adjoining area for acquiring land for Jubber Hatti Airport there was increase in the price of land in that area. In ONGC case supra, the Hon’ble Supreme Court has approved consideration of judgements and awards of the same village or adjoining villages for assessing the market value of the acquired land. There is nothing on record to show any other piece of land was acquired in the same village earlier or near to the date of notification under Section 4 of the Act issued in the present case. In RFA No. 279 of 1998 the market rate at Rs.2,08,620/- per bigha has been upheld for acquiring land in village Nataila. The village Nataila is adjacent to village Kahala, therefore, judgement in RFA No. 279 of 1998 can be safely relied for assessing the market value in the present case. The fact cannot be ignored that for acquiring the land involved in RFA No.279 of 1998 the notification under Section 4 of the Act was published on 30.6.1990 and in the present case the notification under Section 4 was published on 4.6.1988. There is thus difference of two years in the notifications published under Section 4 of the Act in the present case and for acquiring the land involved in RFA No. 279 of 1998. In case, it is assumed that from June 1988 to June 1990 there was increase in prices at the rate of 10% per annum and after giving further allowances in favour of respondents No.1 and 2, if market …9… value of the acquired land is assessed at 50% of the market value of the land involved in RFA No. 279 of 1998 it will be just and reasonable. In that case the market value of the acquired land comes at Rs.1,04,310/- per bigha. PW-1 Surender Mohan has claimed market value at Rs.1 lakh per bigha, which is near to the market value assessed at Rs.1,04,310/- per bigha. Therefore, it is held that market value of the acquired land is at Rs.1,00,000 per bigha. The appellants have failed to make out a case for increase of compensation for fruit bearing trees. The market value of the house/khokha assessed at Rs.20,000/- by the learned District Judge requires no interference in view of the material on record. The impugned award is thus liable to be modified. 14. No other point was urged. 15. The result of the above discussion, this appeal is allowed, award dated 28.11.1998 passed by learned District Judge, Solan in Land Reference No.48-NS/4 of 94/92 is modified. It is held that market value of the acquired land is Rs.1,00,000 per bigha. The market value of the Khokha/house on the acquired land determined by learned District Judge is upheld. The appellants are entitled to amount at the rate of Rs.12% per annum under Section 23(1-A) of the Act on the market value of the acquired land from the date of publication of notification under Section 4 of the Act, i.e. 4.6.1988 to the date of award of the Collector i.e. 31.5.1989. The appellants are also entitled to compulsory acquisition charges at the rate of 30% on the market value of the acquired land and interest for one year at the rate of 9 percent per annum on excess compensation …10… from 4.6.1988 to 4.6.1989 and thereafter at the rate of 15% per annum till payment. No costs. February 25, 2008. ( Kuldip Singh ) (TM) Judge.