IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No. 328 of 2005 Date of Decision : December 12, 2008 State of H. P. & Others …Appellants. Versus: Keshav Ram & Others …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellants : Mr. R. K. Bawa, Advocate General with Mr. Vivek Thakur, Addl. A. G. For the respondents. Kanwar Bhupinder Singh, Advocate SANJAY KAROL, JUDGE (Oral). In the present appeal, the State has assailed the impugned Award dated 19.7.2005 passed by the District Judge, Shimla, in Land Reference Petition No. 29-S/4 of 2003 titled as Lachhu (deceased) through his LRs Keshav Ram & Others. vs. State of H.P. & Others, for the reasons that the enhancement of the compensation is on the higher side. Brief facts necessary for disposal of the present appeal are as under:- The claimants land ad-measuring 3-12 bighas comprised in Khasra No. 561/528 situate in village Rajhana, Tehsil Shimla, H. P. was acquired for the public purpose, namely, 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 ‘construction of Sewerage Treatment Plant at Rajhana’. Notification under Section 4 of the Land Acquisition Act (hereinafter referred to as ‘the Act), was lastly published in H. P. Rajpatra on 18.12.1999. The Collector, Land Acquisition, passed Award under Section 11 of the Act, whereby the market value of the acquired land for different categories was determined as under:- i) Kiar Awbal : Rs.3,37,391.22 per bigha ii) Kalahu Awbal : Rs.3,37,391.22 per bigha iii) Bakhal Awbal : Rs.3,37,391.22 per bigha iv) Bakhal Doem : Rs.2,95,652.10 per bigha v) Banjar/Gair Mumkin : Rs. 86,956.50 per bigha Being dissatisfied with the same, the claimants filed Land Reference Petition under Section 18 of the Act, seeking; (i) enhancement of the compensation, (ii) clarification with regard to the category of the acquired land. Based on the pleadings of the parties, the Court below framed the following issue :- i) Whether the compensation amount paid to the petitioners in respect of their acquired land is not just and adequate, if so to what amount of additional compensation the petitioners are entitled to? …….OPP Opportunity to lead evidence was afforded to the parties. Appreciating the material on record (oral or documentary), the Court below, by referring to the Sale Deed Ext.P-5 and the Awards passed by the District Judge in various 3 land reference petitions and more particularly Awards Ext.P-8, Ext.P-9 & Ext.P-13 enhanced the market value of the land to Rs.4,16,000/- per bigha. With regard to the nature and classification of the acquired land without examining the factual matrix by relying upon the decision of this Court in Lalit Kumar vs. State of H.P. {1998(1) SLC 41}, uniformly applied the rates to the entire acquired land. I have heard the learned counsel for the parties and also perused the record. There is no dispute with regard to the measurement, the place and the ownership of the acquired land. In order to prove its case, the claimants examined Shri Partap Thakur, Patwari Halqua Beulia (PW-1), Shri Pawan Sharma, Registration Clerk (PW-2) and Shri Keshav Ram (PW- 3). In support of its case, the claimants also placed on record the certified copies of the awards passed by the District Judge in various land reference petitions being Ext.P-7, Ext.P-8, Ext.P-9, Ext.P-10, Ext.P-11, Ext.P-12 & Ext.P-13. For the purpose of disposal of the appeal, the Awards Ext.P-8, Ext.P-9 & Ext.P-13, would be relevant. In addition thereto, the claimants also proved on record the Deed Ext.P-5. In rebuttal, the respondents examined Shri Hira Lal Sharma, Assistant Engineer I&PH (RW-1). No evidence has been led by the appellants-State to substantiate the true market value of the acquired land. The Collector while passing the Award has 4 not referred to any document while determining the true market value of the acquired land. The basis and the material on which the market value of the acquired land was fixed by him is not on record. With regard to the location as also the amenities available, even PW-1 who was the Patwari Halqua Beaulia, has deposed that the acquired land is recorded in the revenue record as Bakhal Doem. According to him, the land is at a distance of just 20 mtrs. from the road. PW-3 has categorically deposed that the land is situated adjoining to the Shogi-Shimla Bye-Pass road, where New Shimla Township has been set up. The acquired land, in its vicinity had all facilities, such as, school, market etc. According to him, the acquired land was of cultivable quality and not banjar which was erroneously classified by the Collector, Land Acquisition. Thus, the locational advantage and the potential of the property being put to use other than agriculture stands proved on record. PW-2 has proved on record the Sale Deed Ext.P-5 dated 1.8.1997, whereby 5 biswas of land was sold for a sum of Rs.one lac. The sale stands proved and its genuineness is not in doubt. Importantly, the land was acquired in the year 1999 and the sale pertains to the period 1997. If the said exemplar sale land is to be considered then the decision of the learned District 5 Judge in determining the market value of the acquired land to be Rs.4,16,000/- per bigha appears to be just, fair and reasonable. The Court below by accepting the sale transactions to be genuine and the sale price to be true and correct, determined the market value to be Rs. 4 lacs per bigha. Keeping in mind the increase in the prices of the land between the year 1997 and 1998, he further enhanced the value by 10% thereupon. This was done regardless of the classification of the acquired land. Award Ext.P-8 for which Notification dated 28.7.2001 was issued by the State pertains to the very same public purpose. In terms of the Award Ext.P-9, the land was also acquired for the very same public purpose vide Notification dated 20.11.1997 and the market value of the said acquired land in land reference petition was enhanced to Rs.4 lacs, which was uniformly applied to the entire acquired land. In terms of Ext.P- 13 which is an Award passed by the District Judge, the land was also acquired for the very same public purpose on 20.11.1997 and the market value was enhanced to Rs.4 lacs per bigha, which was uniformly applied to the entire acquired land. The Awards Ext.P-9 & Ext.P-13 passed by the District Judge stand affirmed by this Court in RFA No.77 of 2004 and other connected matters, which was decided on 1.9.2008. The acquisition proceedings in the aforesaid cases pertain to the year 1997 whereas the instant acquisition proceedings were initiated in the year 1999. Therefore, in my view, the Court was right in 6 concluding that the true market value of the acquired land would be Rs.4,16,000/- per bigha. Examining the matter from all angles, in my view, the Court below has considered the ratio of law laid down by the Apex Court in Viluben Jhalejar Contractor (dead) by LRs. vs. State of Gujarat {2005(4) SCC 789}, Chimanlal Hargovinddas vs. Special Land Acquisition Officer {1988(3) SCC 75}1 & Bhagwathula Samanna v. Special Tehsildar & Land Acquisition Officer (1991(4) SCC 506), while arriving at its conclusion. I find no error in the same. The entire land is to be utilized for the purpose of construction of road. It is not a case that some part of the land is to be wasted or left out for carrying out any development activities. 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 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 7 426), 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 Union of India v. Harinder Pal Singh and others (2005(12) SCC 564), while determining the compensation for acquisition of land pertaining to five different villages, the Apex Court uniformly awarded a sum of Rs.40,000/- per acre irrespective of the classification and the category of the land. Further, in Nelson Fernades v. Special Land Acquisition Officer (2007(9) SCC 447) while dealing with the case where the land was acquired for laying a Railway line, the Court held that no deduction by way of development charges was permissible as there was no question of any development thereof. Therefore, in my view, the Court below has rightly arrived at its conclusion that the market value so determined has to be uniformly applied to the entire acquired land. This Court in Lalit Kumar (supra) has also held the same. 8 The Court below has considered the entire material while arriving at its conclusion. I find no illegality, irregularity or perversity in the impugned Award. The appeal is accordingly dismissed. It is clarified that the appellants shall be entitled to all statutory benefits only from the date of the Notification published in the H.P. Rajpatra as RW-1 has proved that the possession of the land was actually taken in the year 1996. The claimants shall be entitled to all benefits as laid down by the Court in Sunder vs. Union of India {2001(7) SCC 211}. (Sanjay Karol), Judge. December 12, 2008. (rana)