IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA Nos. 149 of 2000 and 43 of 2001. Judgement reserved on: 18.3.2008. Date of decision: 24.3.2008. 1. RFA No. 149 of 2000. Kashmir Singh ….. Appellant. Vs. State of H.P. & anr. …. Respondents. 2. RFA No. 43 of 2001. State of H.P. & anr. ….. Appellants. Vs. Kashmir Singh …… Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. R.K.Gautam, Sr. Advocate with Ms. Archana Dutt, Advocate, for the appellant in RFA No. 149 of 2000 and for respondent in RFA No. 43 of 2001. For the Respondents : Mr. R.K.Bawa, Advocate General with Mr. A.K.Bansal, Additional Advocate General for the respondents in RFA No. 149 of 2000 and for appellants in RFA No. 43 of 2001. Kuldip Singh, Judge. This judgement shall dispose of RFA Nos. 149 of 2000 and RFA No. 43 of 2001, since both appeals have arisen from common award dated 11.1.2000, passed by learned District Judge, Bilaspur in Land Reference Case No. 1 of 1995. RFA No. 149 of Whether the reporters of the local papers may be allowed to see the Judgment? …2… 2000 has been filed by the owner of the land for enhancement of the compensation, whereas in RFA No. 43 of 2001, the grievance of the appellants is that learned District Judge has erred in enhancing the market value of the acquired land. The facts are given from RFA No. 149 of 2000. 2. The facts in brief are that State of Himachal Pradesh for construction of Chandigarh- Manali, National Highway No. 21, for acquiring land for public purpose issued notification, under Section 4 of Land Acquisition Act, 1894 (for short, the Act), which was published in the gazette on 21.4.1990. The land measuring 15 biswas, comprised in khasra No. 155/20/1, situate in village Nal, Tehsil Sadar, District Bilaspur was involved in the acquisition. The Land Acquisition Collector (for short, the Collector) announced the award on 7.4.1993 and assessed the market value of the acquired land at the rate of Rs.50/- per biswa. The appellant was not satisfied with the compensation awarded by the Collector, therefore, he filed reference petition on the ground that market value of the acquired land was Rs.50,000/- per biswa. The Collector has not assessed the market value of the acquired land properly. The possession of the acquired land was taken in the year 1960, as such the appellant is entitled to interest at the rate of 24% per annum from the year 1960. The respondents contested the reference petition. They have submitted that market value of the acquired land has been assessed properly by the Collector. They have admitted that possession of the acquired land was taken in the year 1960. On the pleadings of the parties, following issues were framed by the learned District Judge:- …3… 1. Whether the acquired land was not assessed adequately as alleged? OPP. 2. If issue No. 1 is proved in affirmative, to what amount, the petitioners are entitled? OPP. 3. Relief. 3. The learned District Judge has assessed the market value of the acquired land at Rs.20,000/- per biswa and as such enhanced the amount of compensation of the acquired land at Rs.2,99,250/-. The appellant has also been awarded solatium at the rate of 30% on the enhanced amount of compensation, 12% additional compensation under Section 23 (1-A) of the Act from the date of publication of notification, under Section 4 of the Act, i.e. 21.4.1990 to the date of award dated 7.4.1993. Interest at the rate of 9% w.e.f. 1.4.1960 for one year and thereafter at the rate of 15% per annum has also been awarded on the enhanced amount of compensation. Both the parties are aggrieved by the award, hence two sets of appeal, as noticed above. 4. I have heard Mr. R.K.Gautam, learned Senior Advocate assisted by Ms. Archana Dutt for the appellant in RFA No. 149 of 2000 and for respondent in RFA No. 43 of 2001, Mr. R.K. Bawa, learned Advocate General assisted by Mr. A.K. Bansal, learned Additional Advocate General for respondents in RFA No. 149 of 2000 and for appellants in RFA No. 43 of 2001 and have also gone through the record. In RFA No. 149 of 2000, learned Senior Counsel has submitted that learned District Judge has not properly assessed the market value of the acquired land, the market value of the acquired …4… land has been assessed on the lower side and interest has not been awarded on the solatium. He has submitted that learned District Judge has rightly awarded the interest from the year 1960 when the possession was taken but in case this court comes to the conclusion that interest could not be awarded from the date of possession, then the appellant is entitled to award of damages from respondents for using his property from the year 1960 without acquisition. The learned Advocate General has submitted that learned District Judge has assessed the market value of the acquired land on the higher side. He has not properly appreciated the material on record. The interest has been wrongly awarded from the date of possession, whereas it is now settled proposition of law that interest cannot be granted prior to the date of publication of notification, under Section 4 of the Act. The appellant in RFA No. 149 of 2000 has not made out a case for awarding damages from 1960. The learned Advocate General has prayed for acceptance of RFA No. 43 of 2001. 5. In order to appreciate the contentions of the respective parties, it is necessary to refer to the evidence led by the parties. PW 1 Kashmir Singh has stated that his land measuring 15 biswas was acquired for construction of national highway No.21. This land is situated in village Nal, which is in between Swarghat- Duhangi Plate (Baner). He had constructed hotel Green View on this land after obtaining loan of Rs.4,00,000/- from Financial Corporation and from his own pocket. The hotel consisted of ten rooms, three big halls, one restaurant with modern facilities of latrines and bath rooms. In the year 1989, he constructed garages, reception room, flower beds, …5… water tank and open restaurant. In his village in the year 1991, land was sold at Rs.30,000/- per biswa. In the year 1988 Devi Singh has sold two biswas land to Thakur Dass for Rs.40,000/-. Devi Ditta has sold one biswa land for Rs.20,000/- on 4.1.1990 to Jai Singh, Gorkhu and Chhotu Ram. Devi Ditta on 30.7.1990 has sold one biswa land to Parkash Chand for Rs.25,000/-. On 4.1.1990 Devi Ditta has sold one biswa land for Rs.20,000/- to Parkash Chand, Chhotu Ram. After the acquisition of land, he could not run the hotel. PWD had taken forcible possession in the year 1960. He has produced copies of sale deeds Ex. P 1, Ex. P 2 Ex. P 3, Ex. P 4, Ex. P 5, Ex. P 31 and other documents Ex. P 6 to Ex. P 30, Ex. P 32, Ex. P 33. In cross examination, he has stated that at the time of taking over the possession of the land in the year 1960 by PWD, he did not object. He started construction of the hotel in the year 1979-80 and completed in the year 1989. He has stated that the acquired land is in village Nal. 6. PW 2 Devi Ditta has stated that he sold one biswa land to Parkash Chand, Chhotu Ram, vide sale deed Ex. P 2 for a consideration of Rs.20,000/- on 4.1.1990. He received the sale consideration. He also sold one biswa land for Rs.20,000/- to Jai Singh, Gorkhu and Chhotu vide sale deed Ex. P 3. He has also stated that he sold one biswa land for Rs.25,000/- vide sale deed Ex. P 4 to Parkash Chand on 30.7.1990 and he has received the sale consideration. He has seen the land of Kashmir Singh which is better in comparison to his land. PW 3 Parkash Chand is one of the vendees of sale deed Ex. P 2 and he has stated that he paid …6… Rs.20,000/- to Devi Ditta. PW 4 Prem Lal Patwari Halqua Jagatkhana has stated that village Nal is situated in his Patwar Circle. The village Duhangi Plate is in Nalagarh and is at a distance of one kilometer from village Nal. PW 5 Parkash Chand has stated that he worked as mason in Green Hotel of the petitioner from 1987 to 1989 and constructed reception, water tank, flower beds, garages and open restaurant and he submitted his affidavit Ex. P 23 before the L.A.O. PW 6 Santa has stated that vide sale deed Ex. P 1 dated 28.2.1991 he sold one biswa land to Sita Ram for a consideration of Rs.30,000/- in village Nal and received the payment. The learned counsel for the owner has tendered in evidence certificate Ex. PA and closed the evidence. The Deputy District Attorney representing the State has tendered in evidence sale deed Ex. DA and copy of notification Ex. DB and closed the evidence. 7. Mr. Gautam on the basis of Ex. P 7, Ex. P 9 and Ex. P 10 has submitted that during acquisition the market value of the acquired land was assessed at Rs.30,000/- per biswa, but later on it was reduced to Rs.50/- per biswa as per award dated 7.4.1993 of the Collector. The perusal of Ex. P 13, which was written by Land Acquisition Collector to District Collector would show that one biswa land was sold in Mouza Nal for Rs.30,000/-. It appears that for this reason during acquisition at one point of time, the market value of the acquired land was assessed at Rs.30,000/- per biswa, but vide Ex. P 13, the Collector had intimated the District Collector that the market value of the acquired land had been assessed at Rs.9,000/- per biswa. Therefore, it cannot be said that during acquisition …7… proceedings, the market value of the acquired land was assessed at Rs.30,000/- per biswa. It is not clear from Ex. P 7, Ex. P 9 and Ex. P 10 how many sale transactions were considered for assessing the market value in village Nal. Ex. P 7, Ex. P 9 and Ex. P 10 also do not throw light about the comparability of the acquired land with the lands referred in Ex. P 7, Ex. P 9 and Ex. P 10. Therefore, on the basis of Ex. P 7, Ex. P 9 and Ex. P10, it cannot be said that market value of the acquired land at the time of notification under Section 4 of the Act was Rs.30,000/- per biswa. 8. The parties have produced copies of sale deeds Ex. P 1, Ex. P 2, Ex. P 3, Ex. P 4, Ex. P 5, Ex. P 31 and Ex. DA. Ex. P 2, Ex. P 3, Ex. P5, Ex. P 31 and Ex. DA are the sale deeds prior to publication of notification under Section 4 of the Act in the present case. The sale deed Ex. P 1 has been executed after the notification, under Section 4 of the Act and sale deed Ex. P 31 has been executed many years prior to notification under Section 4 of the Act in the present case. Therefore, sale deeds Ex. P 1 and Ex. P 31 cannot be relied. The sale deed Ex. DA dated 8.11.1989 is of village Cheli. There is no evidence on record with respect to comparability of land covered by sale deed Ex. DA with the acquired land. Therefore, the sale deed Ex. DA also cannot be relied for assessing the market value of the acquired land. Now only sale deeds Ex. P 2, Ex. P 3 and Ex. P 5 are left on record for assessing the market value of the acquired land. These sale deeds are of village Plate, whereas, the acquired land is situated in village Nal. The learned District Judge in para- 7 of the impugned award has recorded a finding that village …8… Nal and village Plate are situated on national highway and there is a distance of one kilometer in between these two villages. This finding has not been assailed by either side. The villages Nal and Plate have same potentiality. In absence of other evidence on record, the sale deeds Ex. P 2, Ex. P 3 and Ex. P 5 can be relied for assessing the market value of the acquired land inasmuch as the village Nal is close to village Plate. In ONGC Ltd. vs. Sendhabhai Vastram Patel and others, 2005(6) SCC 454, the Hon’ble Apex Court has held that although there exist different modes for arriving at the market value for the land acquired; the best method, however, as is well known would be the amount which is willing purchaser of the land would pay to the owner of the land as may be evidenced by the deeds of sale. In the absence of any direct evidence on the said point, the court may take recourse to other methods viz. judgments and awards passed in respect of acquisition of lands made in the same village and/ or neighbouring villages. Such a judgement and award in the absence of any other evidence like deed of sale, report of expert and other relevant evidence, however, would have only evidentiary value. It has further been held that instances of sale in respect of similar lands situated in the same village and/ or neighbouring villages should have been taken as guiding factors. In the present case, the sale deeds Ex. P 2, Ex. P 3 and Ex. P 5 of the adjoining village Plate have been proved on record. There is nothing on record to show that sale deeds Ex. P 2, Ex. P 3 and Ex. P 5 are not genuine. Therefore, these sale deeds can be relied for assessing the market value of the acquired land and on the basis of these sale …9… deeds, the learned District Judge has rightly assessed the market value of the acquired land at Rs.20,000/- per biswa. 9. Mr. Gautam, has submitted that interest on the solatium has not been allowed by the learned District Judge. The learned District Judge has allowed interest on enhanced amount of compensation and solatium is the part of compensation, therefore, interest is also payable on solatium also to Kashmir Singh who is appellant in RFA No. 149 of 2000 and respondent in RFA No. 43 of 2001. The learned Advocate General has submitted that learned District Judge has erred in allowing interest from the date of possession, i.e. 1.4.1960. The notification in the present case, under Section 4 of the Act was published on 21.4.1990. Therefore, interest is payable from 21.4.1990 and not prior to it. There is substance in the contention of learned Advocate General. Now it is settled proposition of law that interest is payable from the date of notification, under Section 4 of the Act and not from any other prior date. Therefore, interest at the rate of 9% is payable from the date of notification, under Section 4 of the Act and not from any earlier date. To this extent, the award of the learned District Judge requires modification. Faced with this situation, Mr. Gautam, has submitted that the appellant in RFA No. 149 of 2000 may be allowed damages from 1.4.1960 at the rate of 24% on the compensation amount inasmuch as the land of the appellant has been used by the respondent since 1.4.1960 without paying any compensation. In the reference petition, no case for damages has been pleaded nor there is evidence to this effect. Mr. Gautam has submitted that for …10… establishing the case of damages the case may be remanded to learned District Judge and for that purpose he has relied a judgement of learned Single Judge of this Court in L.A.C. Vs. Ratti Ram, Latest HLJ 2008 (H.P) 104. The case cannot be remanded to prove something for which there is no foundation in the pleadings and the evidence. The reference petition is like a plaint and in the reference petition no case for damages has been set up by the appellant. Therefore, the case cannot be remanded to the learned District Judge, as submitted by Mr. Gautam. 10. No other point was urged. 11. The result of the above discussion while appeal being RFA No. 149 of 2000 is dismissed, the other appeal RFA No. 43 of 2001 is partly allowed. The impugned award dated 11.1.2000 passed by the learned District Judge is modified. The market value of the acquired land is held at Rs.20,000/- per biswa. The respondent in RFA No. 43 of 2001 is held entitled to 12% additional compensation, under Section 23 (1-A) of the Act on the market value w.e.f. 21.4.1990 the date of publication of notification under Section 4 of the Act to 7.4.1993 the date of award of the Collector. He is also held entitled to 30% solatium under Section 23(2) on the market value on account of compulsory acquisition. The respondent is further held entitled to 9% interest from 21.4.1990 for one year and thereafter at the rate of 15% per annum till payment/ deposit. The impugned award is accordingly modified. 12. No costs. March 24, 2008. ( Kuldip Singh ) (Hem) Judge. …11… IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 43 of 2001. Judgement reserved on: 18.3.2008. Date of decision: 24.3.2008. State of H.P. & anr. ….. Appellants. Vs. Kashmir Singh ….. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?2 For the Appellants: Mr. R.K. Bawa, Advocate General with Mr. A.K. Bansal, Additional Advocate General. For the Respondents: Mr. R.K.Gautam, Sr. Advocate with Ms. Archana Dutt, Advocate. Kuldip Singh, Judge. For judgement, see judgement of date rendered in RFA No. 149 of 2000, titled Kashmir Singh vs. State of H.P. & anr. March 24, 2008. ( Kuldip Singh ), (Hem) Judge. Whether the reporters of the local papers may be allowed to see the Judgment? …12…