IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No. 179 of 2007 Cross Objections No. 314 of 2007 Date of Decision : 20.08.2009 __________________________________________________________ LAC & others ….Appellants. Versus Udendera Singh & others ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. __________________________________________________________ For the Appellants: Ms. Ruma Kaushik, Addl.A.G. For the Respondents : Shri Bimal Gupta & Shri K.S. Kanwar, Advocates __________________________________________________________ Dev Darshan Sud, J. This appeal has been preferred by the State of Himachal Pradesh against the award passed by the learned Reference Court enhancing the compensation granted to the respondents. Land measuring 31.17 bighas belonging to the respondents situated in mauja Mohro Dingi, Tehsil Nahan, District Sirmour was acquired by the Public Works Department for the construction of Jamta Bagthan road. It was pleaded that the possession of the land was taken in the year 1977 and since that time the State is in possession of land and is using it. Notification under Section 4 of the Land Acquisition Act (1894) was issued on 1 Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 5.10.1981 and subsequent proceedings under the Act have been completed after that. The claimants contended that the land was valuable and had all the advantages of being capable to put to commercial use as it was surrounded by a number of industries viz. Bee Keeping Centres, Tourist complexes, Patwar circles, Bank, Panchayat Headquarters, Primary Health Centres, Community Centres, Primary Schools, High Schools, 10+2 schools, Agriculture and Horticulture offices etc. and is well connected with the State Highway. This land was irrigated and was best quality land for growing cash crops i.e. Ginger, tomato, potatoes, peas, cauliflowers, maize etc. The claimants are stated to have been deprived of an income of more than Rs. 3 lacs per bigha per year. They also claimed compensation for damages caused to the source of irrigation to the other land of the petitioner. The learned Court on the basis of rival contentions of the learned counsel for the parties and on the basis of evidence produced on record assessed the value of land at Rs. 80,000/- per bigha, taking into consideration sale deed Ext.PW3/B which pertains to the land contiguous to the acquired land in the adjoining village. The learned Reference Court rejected the claim regarding the irrigation tank which according to the claimants had been damaged on the ground that the same did not find mention in award Ext.PW3/A. I have heard learned Additional Advocate General appearing for the appellant. Learned Additional Advocate General submits that the award is not passed on admissible evidence. She submits that the market value of the land was wrongly assessed and determined at a flat rate and that the same should have been determined on the basis of nature of the land. It is further urged that the Court was wrong in ignoring Ext.R3 and Ext.R4 i.e. two sale deeds for the year 1994-95 and 1998-99 which have resulted in grave miscarriage of justice. 3 On the first point as urged by learned Additional Advocate General, I find that the learned Reference Court, relying upon the judgment of this Court which had infact followed the judgment of this Court in H.P. Housing Board Vs. Ram Lal and others, 2003(3) SLC 64 held that when the land was acquired for the purpose of construction of a colony or road etc. classification looses significance. I cannot, therefore, persuade myself to hold that the learned Court has applied the wrong principle of law for assessing the value of the land. Be it stated that even if the proposition put forth by the learned Additional Advocate General is accepted, there is evidence of the claimants on record showing the earning capacity of land which works out to be in lacs, which evidence has remained unrebutted and if it is taken into consideration, the awarded amount has to be increased by a substantial amount. Learned Additional Advocate General submits that the learned Reference Court has not relied on Ext.R3 and Ext.R4 which are sale instances brought on record by the State. In this regard all that need be said is that vendor and vendee were not produced by the State. However, in rebuttal, the claimants have examined PW6 Shri Pradeep Kumar who is vendee in sale deed Ext.R4 and PW7 Shri Balwant Singh, the vendor of sale deed Ext.R4, who have stated in unequivocal terms that the land sold through these deeds is nowhere similar in quality and situation to that of the petitioners. Perhaps this is the reason as to why they were withheld by the State. It is settled that vendee and vendor are not required to be produced in evidence but this does not dispense with the requirement of at least proving that the land subject matter of the sale deeds is of the same or similar quality and possesses same or similar advantage which the acquired land possesses. Now dealing with the other aspects of the quality of land, the evidence of claimants is clear that the acquired land is very fertile and has all the 4 advantages of having access to all the amenities in the nature i.e. schools, institutions, bank, tourist centre etc. It would thus be apparent and clear that it is the potential value of the land which has to be assessed and not the agricultural quality. In the cross objections preferred, the respondents claimants have preferred objections under Order 41 Rule 22 of the Code of Civil Procedure claiming Rs. 3 lacs as the earning potentiality of agriculture income from the land and have also prayed for increase in the compensation by Rs. 30,000/- per bigha. They also claimed that so far as the water tank is concerned, the evidence of PW4 and his report Ext.PW4/B have been wrongly ignored only on the ground that he only assessed the expenses to be incurred to construct a similar tank and this is of no consequence. On the first aspect of the matter, all that need be said is that the learned Court by using the method of proximation has rightly assessed the land at Rs. 80,000/- per bigha and has also awarded compensation for the fruit bearing trees. On the second question, I find that the court has erred in not granting the damages for the water tank. PW4 Shri Amand Deep Singh stepped into the witness box and stated on oath that he had gone to the village to assess the damage caused to the water tank. He proved on record the site plan Ext.PW4/A and the estimate Ext.PW4/B. I do not find anything in his cross-examination which would render its credence unworthy. PW3 Shri Udender Singh has also stated in his evidence that he had constructed a tank of the size 35x16 feet having depth of 8 feet which was damaged. Again, there is nothing in his cross- examination which would render his evidence unworthy of reliance. Merely because Ext.PW3/A, award passed by the Collector, does not state anything about the damage to the tank would not render the evidence of these witnesses unreliable and unbelievable. This part of the award is accordingly modified and the cross-objections are allowed to the extent that the claimants will be entitled to 5 a sum of Rs. 1,31,000/-. In addition to this, the claimants shall be entitled to an amount of Rs. 1,31,677/- for the damage caused to the irrigating tank. No other point has been urged by the appellants or the cross objectors. The claimant will be entitled to the statutory compulsory acquisition charges and interest etc. as provided for under the law. The appeal is accordingly dismissed and the cross- objections are allowed to the extent indicated above. August 20, 2009 (Dev Darshan Sud) (ms) Judge