IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 357 of 2000 with Cross Objection No. 137 of 2001. Judgement reserved on: 26.3.2008. Date of decision: 9.4.2008. Nathpa Jhakri Power Corporation & anr. ….. Appellants. Vs. Mohender Pal …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Ramakant Sharma, Advocate. For the Respondent : Mr. Vinay Kuthiala, Advocate. Kuldip Singh, Judge. This appeal has been directed against the award, dated 30.9.2000, passed by learned District Judge, Kinnaur Civil Division, Rampur Bushahr, in Land reference Petition No. 103 of 1992/95. The respondent has filed cross objection No. 137 of 2001 in the appeal. 2. The facts in brief are that government of Himachal Pradesh, Department of MPP and Power issued notification, under Section 4 of the Land Acquisition Act, 1894 (for short, the Act) for acquisition of land measuring 99-97-24 hectares for public purpose for construction of residential colony for Naptha Jhakri Project in village Jhakri, which was published in the gazette on 18.6.1988. In the notification the land of the petitioner comprised in khasra No. 789, Whether the reporters of the local papers may be allowed to see the Judgment? …2… measuring 0-5 biswas situate in revenue estate, Jhakri, Tehsil Rampur Bushahr, District Shimla, H.P., was also included. The Land Acquisition Collector (for short, the Collector) assessed the market value of the acquired land, vide award dated 27.2.1991 as follows:- 1. Kiar Awal Rs.56,278/- per Bigha 2. Bakhal Awal Rs.26,500/- -do- 3. Bakhal Doem Rs.23,500/- -do- 4. Uncultivated land Rs.20,000/- -do- 3. The respondent was not satisfied with the market value assessed by the Collector, therefore, he filed reference petition, under Section 18 of the Act, which was forwarded by the Collector to the learned Reference Court for determination of the compensation. The reference petition was opposed by the Collector. On the pleadings of the parties, following issues were framed:- 1. Whether the award passed by the Land Acquisition Collector in favour of the petitioner is inadequate, if so, what is the adequate compensation? OPP. 2. Relief. 4. The learned Reference Court, vide award dated 30.9.2000 determined the market value of the acquired land at Rs.1,00,000/- per bigha, interest at the rate of 12% per annum under Section 23 (1-A) of the Act from 16.6.1989 to 27.2.1991, solatium at the rate of 30%, 9% interest for one year from 27.2.1991 and thereafter at the rate of 15% per annum was also allowed. The award of the learned Reference Court has been assailed by way of above appeal in which cross objections have been filed by the respondent. …3… 5. I have heard Mr. Ramakant Sharma, learned counsel for the appellants, Mr. Vijay Kuthiala, learned counsel for the respondent- cross objector and gone through the record. The learned counsel for the appellants has submitted that learned District Judge has erred in enhancing the market value of the acquired land. The evidence on record has been misinterpreted by the learned Reference Court. The market value assessed by the learned District Judge is not supported by the material on record and therefore, enhancement allowed by the learned District Judge is liable to be set-aside. On the contrary learned counsel for the respondent has supported the impugned award but he has simultaneously submitted that less compensation has been awarded to the respondent- cross objector, who is entitled to compensation at the rate of Rs.12,000/- per biswa or Rs.2,40,000/- per bigha instead of Rs.1,00,000/- per bigha awarded by the learned Reference Court. In order to appreciate the contentions of either side, it is necessary to refer to the evidence on record. 6. PW 1 Mohinder Pal has stated that in the year 1978, he had purchased 5 biswas land in village Jhakri, which is adjacent to National highway. In reply to court question, he has stated that lands of Baldev Singh Kamal and Hari Chand are adjacent to his land. He perhaps purchased the land for Rs.5,000/-. His plot is ten meters above the National highway. PW 2 Hari Chand has stated that in the year 1981, he has purchased one biswa land in village Jhakri for Rs.7,000/- vide sale deed, copy Ex. PA. He has again purchased one biswa land in village Jhakri on 2.11.1988 for Rs.15,000/- vide sale deed, copy Ex. PB. He paid the sale consideration before the …4… Sub Registrar. The land purchased by him is adjacent to National highway. The land of Mohinder Pal is adjacent to the said land. On the other side is the land of Baldev Singh Kamal. In cross examination, he has stated that lands which were purchased by him were adjacent. In the year 1982, he started construction of shop. He continued to raise the construction of 12 rooms, 24 feet x 14 feet till the year 1985. 7. PW 3 Baldev Singh Kamal has stated that in the year 1985, he has purchased one plot in village Jhakri situated on National highway No.22 vide sale deed, copy Ex. PW 3/A for Rs.20,000/-. On one side of his plot is the land of Hari Chand Thakur and on the other side is of Mohinder Pal and those lands are similar to his land. He has constructed three storey building on his land in the year 1985. The said building was acquired by N.J.P.C. in the year 1991 and paid him compensation which was less. He has filed a reference petition for enhancement of compensation. In cross examination, he has stated that he purchased 63 square meters land. 8. RW 1 Shankar Dass Patwari, NJPC Jhakri has stated that he is working as a Patwari in NJPC since September, 1996. The land of Mohinder Pal was acquired vide award No. 10/91 dated 27.2.1991. This land was recorded as Banjar Kadim in the revenue record. He has been awarded just compensation on the basis of five years average. In cross examination, he has admitted that land of Mohinder Pal is situated on National highway-22. This land is adjacent to the land of Baldev Singh Kamal and Hari Chander and is …5… similar to their lands. He admitted that in the year 1985-86 Baldev Singh Kamal has constructed three storey building on his land. 9. The sale deed Ex. PA dated 23.10.1981 is of one biswa land which was sold by Major William Patric Stenlay to Ram Kumar and Hari Chand in village Jhakri. As per sale deed Ex. PW 3/A land measuring 0-00-63 was sold by William Patric to Baldev Kamal in village Jhakri for a sale consideration of Rs.20,000/- on 3.8.1985. On 2.11.1988 vide sale deed Ex. PB Major William Patric Stenlay sold 0-00-45 to Hari Chand for Rs.15,000/- in village Jhakri. 10. The notification, under Section 4 of the Act in the present case was published in the gazette on 18.6.1988, therefore, the market value of the acquired land is to be seen on the date of publication of notification, under Section 4 of the Act. PW 1 Mohinder Pal has stated that he had purchased five biswas land in the year 1978 for Rs.5000/- in village Jhakri. This land was acquired later on. It is the case of the respondent that acquired land is similar to the land of Baldev Singh Kamal and Hari Chand. In fact, the lands of respondent, Baldev Singh Kamal and Hari Chand are situated in village Jhakri on National highway No.22. PW 3 Baldev Singh Kamal has stated that the lands of Hari Chand and Mohinder Pal are similar to his land. RW 1 Shankar Dass has admitted that acquired land is situated adjacent to the lands of Baldev Singh Kamal and Hari Chand and is similar to lands of Baldev Singh Kamal and Hari Chand. The respondent has relied on sale deeds Ex. PA, Ex. PW 3/A and Ex. PB for claiming enhanced compensation. …6… 11. Mr. Vinay Kuthiala, learned counsel for the respondent – cross objector has submitted that sale deeds Ex. PW 3/A dated 3.8.1985 and Ex. PB dated 2.11.1988 are proximate in time to the notification, under Section 4 of the Act, which was issued on 18.6.1988. He has submitted that the sale deeds Ex. PW 3/A and Ex. PB are genuine transactions and have been proved in accordance with law. The comparability of the acquired land with the lands covered by sale deeds Ex. PW 3/A and Ex. PB has been proved on record. Therefore, respondent- cross objector is entitled to market value of the acquired land as per sale deeds Ex. PW 3/A and Ex. PB. He has submitted that keeping in view the sale deeds Ex. PB and Ex. PW 3/A, the respondent –cross objector is entitled to at-least market value of acquired land at Rs.12,000/- per biswa or Rs.2,40,000/- per bigha. Mr. Ramakant Sharma, learned counsel for the appellants has submitted that the learned District Judge on the basis of material on record has erred in assessing the market value of the acquired land at Rs.1,00,000/- per bigha. In answer to cross objections the learned counsel for appellants has submitted that learned District Judge has relied judgement dated 11.8.1999 of this Court reported in 2000 (2) Shim. L.C. 45, for assessing the market value of the acquired land at Rs.1,00,000/- per bigha. In fact, three appeals, being RFA Nos. 243 of 1991, 156 and 157 of 1997 were decided by a Division Bench of this Court by common judgement on 11.8.1999 and approved the rate of Rs.1,00,000/- per bigha awarded by learned District Judge in those cases. He has …7… submitted that land involved in judgement dated 11.8.1999 was also situated in village Jhakri. In RFA No. 243 of 1991, notification under Section 4 of the Act was published on 29.1.1987, in RFA Nos. 156 and 157 of 1997 the notification, under Section 4 of the Act was issued on 5.3.1988. The learned counsel for the appellants has submitted that in any case respondent is not entitled to rate over and above determined in cases reported in 2000 (2) Shim. L.C. 45. 12. The learned counsel for the respondent has submitted that judgement reported in 2000 (2) Shim. L.C. 45 has been set-aside by the Hon’ble Supreme Court and case was remanded to this Court for fresh decision, therefore, it cannot be applied as a precedent. Moreover, the land involved in that case was acquired for Pachadda Quarry in the outskirts of village Jhakri, whereas in the present case land which was acquired is situated in the centre of village and was acquired for raising housing colony. Mr. Ramakant Sharma, learned counsel for the appellant has not denied setting aside of the judgement reported in 2000 (2) Shim. L.C. 45. Mr. Ramakant Sharma, learned counsel for the appellant has further submitted that sale transactions covered by sale deeds Ex. PB and Ex. PW 3/A are of small area transactions. The sale deed Ex. PB has been executed on 8.11.1988 after the publication of notification under Section 4 of the Act. According to him, vide sale deed Ex. PB approximately one biswa land and vide sale deed Ex. PW 3/A approximately less than two biswas land was sold, whereas in the present case five biswas land of the respondent was acquired. He has submitted that rate of …8… sale deeds Ex. PB and Ex. PW 3/A in these circumstances cannot be applied for determining the market value of the acquired land. In the alternative, he has submitted that even if rate of sale deeds Ex. PB and Ex. PW 3/A is to be applied, then appropriate deduction is to be made from such rate. 13. The learned counsel for the respondent has submitted that acquired land of the respondent is just five biswas, therefore, sale deeds Ex.PB and Ex.PW 3/A can be relied for assessing the market value of the acquired land without any deduction. He has relied Land Acquisition Officer (Revenue Divisional Officer), Nalgonda (A.P.) vs. Morisetty Satyanarayana and others 2002 (10) SCC 570, in support of his submission that when small holding of an owner is acquired then there is no question of applying the principle of reducing the price on the basis of sale instance for a small piece of land. The learned counsel has submitted that in these circumstances on the basis of sale transactions Ex.PB and Ex.PW 3/A, no deduction is to be made for assessing the market value of the acquired land. It has come on record that before the notification under Section 4 of the Act was issued for acquiring the land in the present case in village Jhakri, notifications under Section 4 of the Act were published on 29.1.1987 and 5.3.1988 in village Jhakri for acquiring other lands and, therefore, it cannot be said that people in the area were not aware of the notifications under Section 4 of the Act for acquiring different pieces of land in village Jhakri. In the present case notification under Section 4 of the Act was published on 18.6.1988. The sale deed Ex.PB was executed on 2.11.1988. In these …9… circumstances, possibility cannot be ruled out that rate settled between the parties for execution of the sale deed Ex. PB has an influence of the notifications under Section 4 of the Act, which were issued prior to 2.11.1988 for acquiring the land in village Jhakri. Hence the rate settled in sale deed Ex. PB dated 2.11.1988 cannot be relied for assessing the market value of the acquired land. 14. The sale deed Ex. PW 3/A dated 3.8.1985 is proximate in time to the publication of notification under Section 4 of the Act in the present case. It has also come in evidence that acquired land is comparable to land covered by sale deed Ex. PW 3/A, therefore, the sale deed Ex. PW 3/A can be safely relied for assessing the market value of the acquired land. The sale deed Ex. PW 3/A is approximately of less than two biswas land and the acquired land is approximately five biswas. Therefore, while relying the sale deed Ex. PW 3/A for assessing the market value of the acquired land appropriate deduction is to be made. The judgement, Land Acquisition Officer (Revenue Divisional Officer), Nalgonda (supra) in the facts and circumstances of the present case is not applicable, inasmuch as the acquired land is a large area in comparison to area of land, which was the subject matter of sale deed Ex. PW 3/A. In Krishna Yachendra Bahadurvaru vs. The Special Land Acquisition Officer, City Improvement Trust Board, Bangalore and others, AIR 1979 SC 869, the Hon’ble Apex Court has held that while assessing the market value of the acquired land to some extent conjecture and guess work is permissible. The acquired land was purchased by the respondent in the year 1978 and it has …10… come on record that since 1978 to the date of notification under Section 4 of the Act in the present case, the market value of the land in village Jhakri has taken upward trend. Therefore, in the facts and circumstances of the case in my opinion it would be just and proper to fix the market value of the acquired land at Rs.9,000/- per biswa. Hence, market value of the acquired land is assessed at Rs.9,000/- per biswa. There is no specific reliable evidence on record when possession of the acquired land was taken by the appellants. Therefore, interest shall be payable from the date of publication of notification under Section 4 of the Act i.e. 18.6.1988. The respondent- cross objector is entitled to other statutory payments and interest on the market value so assessed. The learned District Judge has not properly appreciated the material on record in assessing the market value of the acquired land. The impugned award is, therefore, liable to be modified. 15. No other point was urged. 16. As a result of the above discussion, RFA No.357 of 2000 is dismissed and the cross objection No. 137 of 2001 filed in RFA No. 357 of 2000, are allowed. The market value of the acquired land is assessed at Rs.9,000/- per biswa. The respondent shall be entitled to amount at the rate of 12% per annum on such market value from 18.6.1988 to 27.2.1991 under Section 23 (1-A), 30% solatium on the market value under sub- section 2 of Section 23, 9% interest per annum for one year from 18.6.1988 and thereafter at the rate of 15% interest per annum on such market value till payment. No costs. April 9, 2008. ( Kuldip Singh ) (Hem) Judge.