IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA. RFA No.2 of 2003 & RFA No.69 of 2003. Reserved on:04.01.2008 Date of Decision:February 25, 2008 For title, please see over-leaf: Coram The Hon’ble Mr. Justice Kuldip Singh,Judge Whether approved for reporting?1 Yes For the appellant ] ] Please, see over-leaf: For the respondents ] Kuldip Singh, Judge. This judgment shall dispose of RFA No.2 of 2003 and RFA No.69 of 2003, which have arisen out of Reference Case No.77 of 1995 and Reference Case No.76 of 1995 respectively decided by common award dated 5.10.2001 passed by learned Additional District Judge, Mandi. 2. The facts, in brief, are that a notification under Section 4 of the Land Acquisition Act, 1894 (for short ‘the Act’) was issued by H.P. Government and was published in H.P.Rajpatra on 1.12.1990 for acquiring land for public purpose situated in chak Gora Gagal, Tehsil Sadar, District Mandi for construction of Channel for Balh Valley Medium Irrigation Project. The land measuring 17 biswas of Hari Singh and 1-2- 1 Whether reporters of Local Papers are allowed to see the Judgment? Yes …2… 18 bigha of Roshan Lal etc. was to be acquired under the notification. The Land Acquisition Collector (for short ‘Collector’) announced the award No.24 of 1994 on 31.8.1994 and assessed the market value of the acquired land at Rs.14,000 per bigha. As per the award of the Collector, possession of the acquired land shall stand transferred with effect from the date of compensation is tendered. The respondents were not satisfied with the award of the Collector, therefore, Hari Singh respondent filed reference petition under Section 18 of the Act for enhancement of compensation which was registered as reference case No.76 of 1995. Roshan Lal etc. respondents also filed reference petition under Section 18 of the Act for enhancement of compensation which was registered as reference case No.77 of 1995. In both the reference petitions it has been submitted that market value of the acquired land has been assessed at a very low rate, the market value of the acquired land at the relevant time was more than Rs.50,000 per bigha with a prayer that compensation of the acquired land may be determined in accordance with law. The respondents filed replies in both the reference cases and have submitted that adequate and reasonable compensation has been paid to the respondents / owners and, therefore, they prayed for the dismissal of the reference petitions. The following issues were framed in both the cases by the learned Reference Court:- i) Whether the compensation awarded by the Collector is inadequate? If so, what was the market value of the land in dispute at the time of acquisition? OPP …3… ii) Whether the petition is bad for non- joinder of necessary parties? OPR iii) Relief. The learned Additional District Judge vide order dated 30.5.1998 consolidated both the reference petitions and recorded the evidence in reference case No.76 of 1995 with the direction that evidence shall be read in both the cases. 3. The learned Additional District Judge decided both the reference petitions by common award dated 5.10.2001 and assessed the market value of the acquired land at Rs.8000 per biswa or Rs.1,60,000 per bigha. In the impugned award he gave direction to calculate the market price of the acquired land in terms of the findings given by him while deciding Issue No.1. The compulsory acquisition charges at the rate of 30% were allowed under Section 23(2) of the Act on the enhanced compensation and 12% additional amount on the excess market value under Section 23(1-A) of the Act. Interest at the rate of 9% per annum for the first year on the enhanced amount from the date of possession i.e. 3.2.1991 to 31.8.1994 and at the rate of 15% on the enhanced amount till the entire amount is deposited in the Court or paid to the owners was also allwed. In these circumstances, two separate appeals being RFA No.2 of 2003 and 69 of 2003 have been filed in this Court. 4. I have heard Mr.M.L.Chauhan, learned Additional Advocate General for the appellants in both the appeals, Mr.G.R.Palsra, Advocate for respondents in RFA No.2 of 2003 and Mr.Lalit Sharma, Advocate for respondent in RFA No.69 of 2003 and gone through the record. The …4… learned Additional Advocate General has submitted that learned Additional District Judge has erred in enhancing the market value of the acquired land from Rs.14,000 per bigha to Rs.1,60,000 per bigha. The claimants in the claim petition have pleaded market value of acquired land more than Rs.50,000 per bigha but learned reference Court has awarded at Rs.1,60,000 per bigha which is more than what has been pleaded in the reference petition. The small area transactions have been wrongly taken into consideration for assessing the market value of the acquired land. The learned Additional District Judge has misconstrued and mis-interpreted the material on record. No deduction has been made while assessing the market value of the acquired land on the basis of small area transactions. The owners of the acquired land have been paid adequate and just compensation by the Collector, enhancement allowed by the learned Additional District Judge is not sustainable. The learned counsel representing the respondents have supported the impugned award in both the appeals. They have submitted that after due appreciation of the material on record the learned Additional District Judge has rightly assessed the market value of the acquired land at Rs.8000 per biswa or Rs.1,60,000 per bigha. 5. PW-1 Hari Singh has stated that IPH Department has acquired his land in Gora Gagal. The market value of the land in Mohal Gora Gagal is Rs.1.50 lacs per bigha. In cross examination, he has stated that in that Mohal several sales have taken place at Rs.1.50 lacs per bigha. He answered in affirmative that Dev son of Hem Singh has sold one biswa land to Amar Singh on 3.4.1989. …5… 6. PW-2 Amar Singh has stated that vide sale deed Ext.AW- 2/A he has purchased land in Mohal Gora Gagal at the rate of Rs.8000 per biswa. Mohal Gora Gagal is thickly populated and is at a distance of half kilometer from national highway. There is a veterinary hospital, 10+2 School and wholesale dealers as well as industries in the village. All facilities are available in the village. This village has merged with Mandi town. The people purchase land in this village for residential purposes. On national highway the rate of land is Rs.60-70,000 per biswa. There are big shops and hotels on the national highway adjacent to the village. In cross examination, he has stated that he purchased the land for shop. He denied that in the sale deed incorrect sale consideration has been shown. 7. PW-3 Lal Man has stated that in Mohal Gora Gagal vide sale deed Ext.AW-3/A he purchased land in the year 1989 at the rate of Rs.8000 per biswa. This village is close to Mandi Town. In cross examination, he has stated that he purchased the land vide sale deed Ext.AW-3/A for shop. He has denied that higher sale consideration has been shown in the sale deed. PW-4 Fagnu Ram has stated that in the year 1989 he purchased six biswansis land for Rs.1000 from Dharam Pal vide sale deed Ext.AW-4/A. Dharam Pal has died. Dev aged 90 years is not keeping good health and is not in a position to move out. Dev sold the land to Amar Singh and Lal Man. In cross examination, he has stated that he purchased the land for construction of house as Gora Gagal is a place for market. 8. RW-1 Rajinder Singh, J.E., IPH Sub Division, has stated that from April 1994 to 1996 he was posted at Baggi Sub Division No.3 as …6… J.E. He has seen the acquired land. This land is at a distance of half kilometer from Gagal and is on hill. It is Ghasni and no abadi is near to the acquired land. In cross examination, he has stated that the acquired land is sloppy. He has admitted that Gagal is a developed area. In the statements of witnesses, the sale deeds have been referred as Ext.PW- 2/A, Ext.PW-3/A and Ext.PW-4/A but on the sale deeds exhibits have been marked as Ext.AW-2/A, Ext.AW-3/A and Ext.AW-4/A, therefore, in this judgment the sale deeds are referred as Ext.AW-2/A, Ext.AW-3/A and Ext.AW-4/A and the statement of witnesses are referred accordingly. 9. The owners have proved sale deed Ext.AW-2/A dated 3.4.1989 vide which one biswa land was sold at Mauza Gora Gagal for Rs.8000. They have also proved sale deed Ext.AW-3/A dated 3.4.1989 vide which one biswa land was sold for Rs.8000 at Mauza Gora Gagal. The notification under Section 4 of the Act was published in the Gazette on 1.12.1990. The sale deeds Ext.AW-2/A and Ext.AW-3/A are prior in time to the notification under Section 4 of the Act. The sale deeds Ext.AW-2/A and Ext.AW-3/A are genuine sale transactions. The sale deed Ext.AW-4/A is of just six biswansis of land and, therefore, it has been rightly not relied by learned Additional District Judge for assessing the market value of the acquired land. The appellants have not produced any sale deed for assessing the market value of the acquired land. Only 17 biswas land of Hari Singh and 1-2-18 bigha land of Roshan Lal etc. has been acquired. The grievance of the appellants is that the learned reference Court has erred in relying small area transactions of sale deeds Ext.AW-2/A and Ext.AW-3/A for assessing the market value of large area acquired. No doubt, sale deeds Ext.AW-2/A and Ext.AW-3/A …7… are transactions of small areas of one biswa land each and acquired area is comparatively large but it cannot be said that the acquired land of each owner is very large in comparison to sale deeds Ext.AW-2/A and Ext.AW- 3/A. There is no absolute bar for relying small area transactions while assessing the market value of large area. In Ravinder Narain and another versus Union of India, (2003) 4 SCC 481, the Hon’ble Supreme Court in Para-7 has held as follows:- “It cannot, however, be laid down as an absolute proposition that the rates fixed for the small plots cannot be the basis for fixation of the rate. For example, where there is no other material, it may in appropriate cases be open to the adjudicating court to make comparison of the prices paid for small plots of land. However, in such cases necessary deductions / adjustments have to be made while determining the prices.” In Rishi Pal Singh and others versus Meerut Development Authority and another, (2006) 3 SCC 205, the Hon’ble Supreme Court has held that there is no bar in law to exemplars of small plots being considered. In an appropriate case, specially when other relevant or material evidence is not available, such exemplars can be considered after making adequate discount. In the present case also, there is no other evidence on record except the sale deeds Ext.AW-2/A and Ext.AW-3/A for assessing the market value of the acquired land. The sale transactions vide sale deeds Ext.AW-2/A and Ext.AW-3/A are genuine …8… and are of lands situate in village Gora Gagal where the acquired land is also situated. 10. PW-1 Hari Singh has stated that market value of the land in Mohal Gora Gagal is Rs.1.50 lacs per bigha. PW-2 Amar Singh and PW- 3 Lal Man have stated that Gora Gagal is thickly populated village and it has merged with Mandi Town. All facilities are available in this village. The people purchase land in this village for shops and for residential purposes. The national highway is at a distance of half kilometer from the village. PW-2 has stated that market value of the land adjacent to national highway is Rs.60-70,000 per biswa. The appellants have led no worth believing evidence that acquired land is not comparable to the lands covered by sale deeds Ext.AW-2/A and Ext.AW-3/A. Therefore, sale deeds Ext.AW-2/A and Ext.AW-3/A can be relied for assessing the market value of the acquired land. 11. As per sale deeds Ext.AW-2/A and Ext.AW-3/A rate comes Rs.8000 per biswa or Rs.1,60,000 per bigha, the learned Additional District Judge has assessed the market value of the acquired land at Rs.1,60,000 per bigha. The grievance of the learned Additional Advocate General is well founded that while assessing the market value of the acquired land the learned Additional District Judge has not made any deduction from the market value of the acquired land at Rs.1,60,000 per bigha arrived at on the basis of sale deeds Ext.AW-2/A and Ext.AW- 3/A. The Hon’ble Supreme Court in Kasturi and others versus State of Haryana, (2003) 1 SCC 354, has held that normally 1/3rd amount of compensation has to be deducted out of the amount of compensation payable on the acquired land subject to certain variations depending on …9… its nature, location, extent of expenditure involved for development and the area required for roads and other civil amenities to develop the lands so as to make the plots for residential or commercial purposes. In H.P.Housing Board versus Bharat S. Negi and others, (2004) 2 SCC 184, the Hon’ble Supreme Court has allowed 33 1/3 % deduction towards development cost with comparable sales of small pieces of lands. In the present case, the rate comes at Rs.1,60,000 per bigha but PW-1 Hari Singh one of the owners has stated that rate of land in village Gora Gagal is at Rs.1.50 lacs per bigha. Therefore, it is held that the value of the acquired land at the time of acquisition was Rs.1.50 lacs per bigha. In view of the Kasturi and others vs. State of Haryana and H.P.Housing Board’s case (supra), from the rate of Rs.1.50 lacs per bigha 1/3rd amount is to be deducted in order to correctly assess the market value of the acquired land at the time of acquisition. Thus, the market value of the acquired land comes at Rs.1 lac per bigha. As per award dated 31.8.1994 of the Collector, the possession of the acquired land shall stand transferred with effect from the date of compensation is tendered, therefore, date of transfer of possession of the acquired land can be safely assumed 31.8.1994, i.e. the date of the award of Collector. 12. There is another objection of the learned Additional Advocate General that in the reference petitions the owners have claimed market value of the acquired land at Rs.50,000 per bigha and, therefore, they cannot be awarded market value of the acquired land over and above Rs.50,000 per bigha. The perusal of reference petitions under Section 18 of the Act in both the appeals would show that the owners have pleaded that the market value of the acquired land is more …10… than Rs.50,000 per bigha. It is not their pleaded case that the market value of the acquired land is Rs.50,000 per bigha. The parties were put to issue regarding the market value of the acquired land. The perusal of the impugned award would show that it was not the case of the appellants in the reference Court that the owners have claimed rate at Rs.50,000 per bigha only. The appellants were aware that the owners are not confining their claim at Rs.50,000 per bigha rather their claim is that the market value of the acquired land was more than Rs.50,000 per bigha. The objection of the appellants that respondents are not entitled to rate of the acquired land over and above Rs.50,000 per bigha is thus rejected. 13. In view of the above discussion, the market value of the acquired land is assessed at Rs.1 lac per bigha. The respondents owners of the acquired land in both the appeals are entitled to compensation of acquired land at Rs.1 lac per bigha, they are also entitled to an amount calculated at the rate of 12% per annum on such market value from 1.12.1990 date of publication of notification under Section 4 of the Act to 31.8.1994 date of award of the Collector under Section 23(1-A) of the Act, they are also entitled to compulsory acquisition charges at the rate of 30% on the market value assessed under sub-section (2) of Section 23 of the Act. They are also entitled to interest at the rate of 9% on the excess amount of compensation from 31.8.1994 date of possession of the acquired land to 31.8.1995 and thereafter at the rate of 15% per annum till payment. 14. No other point was urged. …11… 15. The result of the above discussion is that both the appeals being RFA No.2 of 2003 and RFA No.69 of 2003 are allowed and impugned award dated 5.10.2001 passed by learned Additional District Judge, Mandi in both the appeals is modified. In both the appeals, it is held that the market value of the acquired land is Rs.1 lac per bigha. The respondents / owners of the acquired land in both the appeals are also entitled to amount calculated at the rate of 12% per annum on such market value from 1.12.1990 date of publication of notification under Section 4 of the Act to 31.8.1994 date of award of the Collector under Section 23(1-A) of the Act, they are also entitled to compulsory acquisition charges at the rate of 30% on the market value assessed under sub-section (2) of Section 23 of the Act. They are also entitled to interest at the rate of 9% on the excess amount of compensation from 31.8.1994 to 31.8.1995 and thereafter at the rate of 15% per annum till payment. No costs. February 25, 2008 ( Kuldip Singh ), J. (soni) …12… 1. RFA No.2 of 2003: Land Acquisition Collector & Anr. …Appellants. Versus Roshan Lal & Ors. ..Respondents. For the appellants: Mr.M.L.Chauhan, Addl. Advocate General. For the respondents: Mr.G.R.Palsra, Advocate. 2. RFA No.69 of 2003: Land Acquisition Collector & Anr. …Appellants. Versus Hari Singh ..Respondent. For the appellants: Mr. M.L.Chauhan, Addl.Advocate General. For the respondent: Mr.Lalit Sharma, Advocate. **** …13… IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No.69 of 2003 Reserved on:04.01.2008. Decided on:February 25, 2008 Land Acquisition Collector & Anr. ….Appellants Versus Hari Singh …Respondent Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?2 For the Appellants: Mr. M.L.Chauhan, Addl. A.G. For Respondent: Mr.Lalit Sharma, Advocate. Kuldip Singh, Judge For judgment, see Judgment of even date, rendered in RFA No.2 of 2003 titled Land Acquisition Collector and another Versus Roshan Lal and others. February 25, 2008 ( Kuldip Singh ), J. (soni) 2 Whether the reporters of the local papers may be allowed to see the Judgment?