IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No. 64 of 2003 Date of Decision: 20th August, 2008 Krishan Pratap Pandove and others Appellants Versus State of Himachal Pradesh and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellants: M/s Trilock Chauhan and C.N. Singh, Advocates. For the respondents: Mr.R.K.Bawa, Advocate General, with Mr.Vivek Thakur, Addl. Advocate General. Sanjay Karol, J. (Oral) The present appeal, filed by the claimants, arises out of award dated 5.12.2002 passed by District Judge, Solan, in Land Reference No. 5-S/4 of 2000, titled as Shri Krishan Pratap Pandove vs. State of Himachal Pradesh and others. The appellants land approximately 360 sq. yards (8 Biswas) abutting the National Highway in Dharampur Bazar, Tehsil Kasauli, District Solan, HP was utilized for the expansion of the National Highway by the State in the year 1972. Admittedly, no acquisition proceedings were initiated at that time. The State deprived the appellants of their property and continued to Whether the reporters of Local Papers are allowed to see the Judgment? 2 use the same to its advantage and benefit. The claimants knocked the doors of the authorities and ultimately proceedings for acquisition of the said land were initiated with the issuance of the Notification dated 19.9.1989 under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act). However, the said acquisition proceedings were allowed to be elapsed. Thereafter, a fresh Notification under Section 4 of the Act was issued on 3.6.1998 proposing to acquire 360 sq. yards of land possession of which already stood taken by the State. The acquisition proceedings were concluded with the passing of the Collector’s award No. 2/ 99 dated 29.4.1999, whereby the market value of the acquired land was determined to be Rs.34,200/- per Bigha (20 Biswas = 1 Bigha = 900 sq. yards). Being dissatisfied, the claimant filed Land Reference Petition under Section 18 of the Act. In order to prove its case the claimant examined Shri Jai Chand Bansal (PW-1), Shri Sukh Darshan Singh (PW-2), Shri S.R.Arya (PW-3), Shri Krishan Pratap (PW-4), Shri Umesh Batra (PW-5) and Shri Nanak Singh (PW-6) and inter alia proved on record the copies of sale deed Ext.PA and agreement to sell Ext.PW-4/N. Copy of recommendation of the State officials, dated 19.11.1998 proposing the rate of the acquired land to be Rs.1,17,50,000/- per Bigha also stood proved by the claimant. Importantly, no evidence whatsoever, oral or documentary, was led by the respondent-State. Appreciating the material on record, while determining the market value the Court below did not consider the agreement to sell (Ext.PW-4/N) for the reason that the transaction had not been completed. The Court below also did not consider Ext.PA for the reason that the said 3 sale was not proximate to the time of initiation of the acquisition proceedings and, therefore, purely on the basis of guess work determined the market value of the acquired land to be Rs.2 lacs per Bigha i.e. Rs.1,65,800/- over and above the market value of the land so determined by the Land Acquisition Collector in its award. It is against this finding of fact that the appellant has filed the present appeal. The State has not filed any appeal or Cross-objections. I have heard the learned counsel for the parties and also perused the record. From the testimony of the claimants’ witnesses, it is evident that land is situated in Dharampur Bazar, abutting the National Highway and had all modern facilities and amenities and had great potential of being put to commercial use. There is an office of H.P. State Electricity Board and SSB Battalion adjoining to the acquired land. Shri S.R. Arya (PW-3) the then Land Acquisition Officer vide letter 19.11.1998 (Ext.PW-3/A) himself recommended the market value of acquired land to be Rs.1,17,50,000/-. The land in question was ideally located for setting up of a commercial complex. The claimant has proved the necessary sanction accorded by the State Government for setting up of a commercial complex on the acquired land which, however, could not be constructed for the reason that the possession of the property had been illegally taken over by the State. The acquired land is just 200 yards away from the Main Bus Stand, Dharampur. Even though in the revenue record the acquired land was classified as Ghasni, however, it had a great potential of being put to commercial use. These facts are not only borne out from the record but are fairly not disputed by the learned counsel for the State. It is also an 4 admitted position that the possession of the land in question was taken by the State in the year 1972 itself and till the initiation of the instant acquisition proceedings the State had been using the same to its advantage and benefit and the owner has not been compensated for the deprivation of his property. I have no hesitation in holding that the claimant has been deprived of his constitutional right of property by the State for the long time without any authority of law. In order to substantiate the claim, the claimants’ witnesses have stepped into the witness box to prove the value of the land on the date of acquisition. In fact it is much higher than what was claimed by them in the claim petition. Ext.PA is an exemplar sale deed duly proved by PW-4 and PW-7, which evidences sale of 30 sq. yards for a total consideration of Rs.15000/-. The sale deed is dated 6.7.1987. From the record, it is evident that the said sale transaction is genuine, reflecting the true market value of the land at the relevant point in time. As per this sale transaction the prevalent market prior works out to be approximately Rs.4,50,000/- per Bigha. Importantly, this sale pertains to the very same Khasra No. 75/37 for which the acquisition proceedings in question have also been initiated. Agreement to sell Ext.PW-4/N is dated 17.1.1994 and is also in relation to the very same Khasra number for which the acquisition proceedings have been initiated. As per this agreement approximately 60 sq. yards of land was sought to be purchased for a total sum of Rs.90,000/-. Even as per the same the market value of the land prevailing in the area was approximately Rs.13,50,000/- per Bigha. For the purpose of determination of true and correct market value this agreement may not be made the basis, 5 but, however, it is only reflective of the trend indicating the increase in the land prices prevalent in the area. The acquisition proceedings started in the year 1998. The acquired land is situated in the heart of Dharampur Town and over the years it has become a main commercial hub and centre of business activity due to proximity with Kasauli town. Judicial notice can be taken of the fact that there has been trend of overall increase in the prices. The similarity of acquired land with regard to nature and classification with that of exemplar sale deed and agreement to sell stands proved by the claimant’s witnesses. In Krishi Utpadan Mandi Samiti Sahaswan, District Badaun, through its Secretary vs. Bipin Kumar and another, (2004) 2 SCC 283 and Special Land Acquisition Officer, BTDA, Bgalkot vs. Mohd. Hanif Sahib Bawa Sahib, (2002) 3 SCC 688, it has been held by the Apex Court that it would be open for the Courts to take into account an average annual increase of prices by 10 to 15%. The ratio of law laid down by the Apex Court and considering the annual escalation to be of 15% only, the market value proved through Ext.PA of the acquired land can be determined to be approximately Rs. 20,93,568/- per Bigha or say Rs.21 lac per Bigha or Rs.2333/- per sq. yard. The claimants have prayed for an enhancement of approximately 27 lacs per Bigha. Through the cogent, convincing and reliable evidence, the claimants have been successful in proving the market value of the land to be Rs. 21 lacs per Bigha or Rs.2333/- per sq. yard. However, the State official in fact had proposed and recommended the rate of the acquired land to be Rs.1,17,50,000/- per Bigha. However, in my view, the interest of justice would be met if the figure of Rs.2333/- is rounded of as Rs.2500/-. The total land is approximately Rs.360 sq. yards, 6 therefore, the claimant is entitled to Rs.2500/- per sq. yard and in so far as the compensation payable to the claimant is concerned, the claimant shall be entitled to Rs.9,00,000/- (Rs.2500 x 360). Since the acquired land has been used in its entirety for the purpose of expansion of road, therefore, no deduction is required to be made. Learned counsel for the appellants has pressed that the compensation for use of the property prior to the acquisition of the land be also awarded. In these proceedings, no such compensation can be awarded and it is open for the claimants to take recourse to such remedies as may be available to them in law. Learned counsel for the appellant has fairly stated that interest on the compensation has to be awarded from the date of publication of the Notification issued under Section 4 of the Act and not from the date of the possession as has been wrongly awarded by the Court below. Ordered accordingly. For the aforesaid reasons, the present appeal is allowed and the impugned award dated 5.12.2002 is modified to the aforesaid extent. Needless to add that the claimant shall be entitled to all statutory benefits, more particularly, as per the ratio of law laid down in Sunder vs. Union of India, (2001) 7 SCC 211. 20th August, 2008 (Sanjay Karol) (C) Judge.