IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RFA Nos. 318 to 321 of 2003. Date of decision April 6, 2010. 1, RFA 318 of 2003 State of Himachal Pradesh & others …Appellants. Versus Shri Sachida Nand & another …Respondents. 2, RFA 319 of 2003 State of Himachal Pradesh & others…Appellants. Versus Sh. Bal Krishan & others …Respondents. 3, RFA 320 of 2003. State of Himachal Pradesh & others …Appellants. Versus Smt. Shanti & others …Respondents. 4, RFA 321 of 2003. State of Himachal Pradesh & others …Appellants. Versus Sh. Ramesh Kumar & others …Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. For the appellants Ms. Ruma Kaushik, Addl. Advocate General. For the respondents Mr. Bhupinder Gupta, Senior Advocate, with Mr. Janesh Gupta, Advocate. Dev Darshan Sud, J. (Oral) All these appeals are being disposed of by a common judgment as they arise out of the 1 Whether Reporters of Local Papers are allowed to see the judgment? - 2 - judgment of the learned Reference Court in four reference petitions having been consolidated and tried together. By an order passed on 20.8.2001, in Sachida Nand & another versus Land Acquisition Collector and others, Reference Petition No.17-S/4 of 2001, all the land reference petitions, subject matter of this appeal, were consolidated and disposed of by common judgment on common evidence. It is undisputed before me that land reference petitions arise out of common award No. 18/ 1999, dated 31.1.2000 and award No. 19/1999 dated 31.1.2000, where purpose of acquisition was for setting up sewerage treatment plant in Solan town. The acquired land is situated in Dadhog, Tehsil and District, Solan. Notification under Section 4 of the Land Acquisition Act, 1894 (hereafter referred to as ‘the Act’) was issued on 9.9.1996. Being dissatisfied by the award, the respondents herein petitioned the reference Court under Section 18 of the Act praying for enhancement of the awarded amount. The acquired holdings are not very large, the largest chunk of land being 2 bighas which was the subject matter of Land Reference No. 20-S/4 of 2001, titled as Shanti & others versus State of Himachal Pradesh & others and the smallest holding is 0.6 biswas, which is - 3 - subject matter of land reference petition No. 18-S/4 of 2001, titled Smt. Parwati & others v. State of Himachal Pradesh & others. Learned Reference Court, on the pleadings, framed six issues out of which issue No. 1 which dealt with the award of adequate compensation, was the primary issue for decision. Five witnesses were examined on behalf of the petitioners and one Ramesh Chand was examined by the respondents. Before dealing with other aspects, I must notice that the evidence of Ramesh Chand, RW-1 deserves to be rejected outright as it is not worthy of credence, since the only statement which he made before the Court is that he had sold 4 biswas of land to one Champa about 10/12 years back for a sum of Rs.5000/-. There is no sale deed either proved on record or even tendered in evidence. There is nothing in evidence to show that this piece of land which was sold by him is comparable to the land of the petitioners. The petitioners proved four sale deeds, namely Exts. PW-1/A, dated 25.5.1995, PW-1/B, dated 30.6.1997, PW-1/C, dated 24.4.1996 and PW-1/D, dated 24.4.1996. The first deed is for sale of 4 biswas of land at Rs.40,000/-, the second for 2 biswas at Rs.32,000/-, the third is 40 square meters of land at Rs.20,000/- and the last 112 - 4 - square meters of land at Rs.56,000/-. The learned Court also took into consideration the rates approved by the Collector for various categories of land, 10 in number, with prices ranging from Rs.125/- per square meter to Rs.7014/- per square meter. He chooses a midline and awards Rs.1002/- per square meter as the market value of the land. To arrive at this conclusion, he places reliance on the decision of the Supreme Court in Suresh Kumar v. Town Improvement Trust, Bhopal , AIR 1989 SC 1222, holding that it is not merely the reference to the user at the time of acquisition, but the user to which land is capable of being put to which is required to be assessed. The learned Judge holds that a flat rate has to be awarded for all the acquired lands since the end use was that for construction of sewerage treatment plant. Application under Order 41 Rule 27 of the Code of Civil Procedure has been filed in each appeal by the State praying for permission to lead additional evidence. CMP 879 of 2005 in RFA 318 of 2003, CMP No. 881 of 2005 in RFA 319 of 2003, CMP 680 of 2005 in RFA No. 320 of 2003 and CMP No. 681 of 2005 in RFA No. 321 of 2003. All these applications contain the same pleadings and the same additional evidence - 5 - required to be placed on record which is common to all the appeals. The State wishes to lead evidence by placing on record four sale deeds. The first is dated 16.2.1999, the second dated 31.3.2001, the third dated 18.9.1999 and the 4th dated 11.6.2001. The application(s) only state that the State does not have any money to pay for the acquisition and in these circumstances, the land requires to be returned to its owners. This is the purpose why the application for leading additional evidence is required. A bare perusal of the averments made in the application(s) shows that it does not satisfy the requirements of Order 41 Rule 27 of the Code of Civil Procedure. Merely placing sale deeds on record, without in any manner, stating their relevance cannot be accepted. I have noticed the dates of the sale deeds which would indicate that the earliest in point of time is three years and more subsequent to the notification. This evidence cannot be allowed to be brought on record of the case as it is not in proximity to the time when the notification under Section 4 of the Act was issued. Placing any other interpretation on Order 41 Rule 27 would make proceedings interminable. The application(s) is / are accordingly rejected, as I do not find the sale instances sought to be proved either - 6 - relevant or such as are required by this Court to adjudicate the dispute between the parties effectively. Turning to the legality of the award, the learned Court, after noticing that these are not very relevant, adopts the price of Jai Safed determined by the Collector as the basis on which the award is to be made. I have held above that the evidence of RW-1 Ramesh Chand cannot be accepted as it does not establish any fact whatsoever. He seems to have been produced merely as a formality. The evidence of the witnesses of the petitioners, on the other hand, establishes that the land acquired was possessed of all the advantages of nearness to the bus stand, bank and industrial estate nearby and being situated contiguous to the National Highway. In these circumstances, when the evidence on record establishes proximity of the land to all facilities and contiguity to the National Highway, the irresistible conclusion is that the land has a very high commercial value. In considering the potentiality of the land and determining its value the Supreme Court in Union of India and others vs. Ajit Singh, AIR 1997 SC 2669 held: “5. The High Court in the judgment has noted that the lands - 7 - are situated in the developed area and are very near to the developed localities belonging to the private parties and Government. Therefore, it possesses the potential value for use for building purposes. ……Accordingly, it has determined the compensation @ Rs.28,387.00 per bigha……..We think that the determination of the market value on the basis of the above consideration is not vitiated by any error of principle”. (Emphasis supplied). I may also note that this Court in Smt. Gulabi and etc. vs. State of H.P., AIR 1998 HP 9, holds that where the land was acquired for the purpose of construction of a road, a flat rate irrespective of the classification of the land requires to be awarded. One other submission has been made by the learned Additional Advocate General and that is that a deduction is required to be made from the amount awarded, this argument cannot be accepted for the reason that it is the rate recommended by the Collector which has been awarded by the learned Reference Court. Even assuming that some deduction is to be made, the appellants have not pleaded or laid any foundation to justify any deduction being made. - 8 - In C.R.Nagaraja Shetty (2) v. Special Land Acquisition Officer and Estate Officer and another, (2009) 11 SCC 75, the Supreme Court holds: “12. That leaves us with the other question of deduction ordered by the High Court. The High Court has directed the deduction of Rs.25/- per square foot. Unfortunately, the High Court has not discussed the reason for this deduction of Rs.25/- per square feet nor has the High Court relied on any piece of evidence for that purpose. 13. It is true that where the lands are acquired for public purpose like setting up of industries or setting up of housing colonies or other such allied purposes, the acquiring body would be entitled to deduct some amount from the payable compensation on account of development charges, however, it has to be established by positive evidence that such development charges are justified. The evidence must come for the need of development contemplated and the possible expenditure for such development. We do not find any such discussion in the order of the High Court. - 9 - 14. As if this is not sufficient, when we see the judgment of the Principal Civil Judge (Sr. Division), Bangalore, Rural District, Bangalore in Reference proceedings, we find that there is no deduction ordered for the so-called development charges. We are, therefore, not in a position to understand as to from where such development charges sprang up. 15, The Learned Counsel appearing on behalf of the respondents was also unable to point out any such evidence regarding the proposed development. We cannot ignore the fact that the land is acquired only for widening of the National Highway. There would, therefore, be no question of any such development or any costs therefor.” The submission made by the learned Additional Advocate General, therefore, deserves to be rejected. These appeals are accordingly dismissed. There shall be no order as to costs. Pending application(s) shall stand disposed of. April 6, 2010 (PC). (Dev Darshan Sud), J.