HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No.: 409 of 2006 with Cross Objections: 184 of 2007 Reserved on: 4.8.2009 Decided on: 20.10.2009 Executive Engineer, Township Division, BBMB, Sunder Nagar, District Mandi, H.P. ………Appellant. Versus Gajan Singh and another ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellant Mr.N.K. Sood, Advocate. For respondent No.1.: Mr.Ashok Sharma, Advocate. For respondent No.2: Mr.J.S. Guleria, Assistant Advocate General. V.K. Ahuja, J: This judgment shall dispose of the regular first appeal filed by the appellant under Section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’), against the award passed by the learned District Judge, Mandi, dated 7.10.2005, whereby the market value of the land, as fixed by the Collector, was enhanced. This judgment shall also dispose of the cross objections filed by respondent No.1 for enhancement of the compensation. __________________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - Briefly stated the facts of the case are that a Notification was issued by the State Government under Section 4 of the Act on 3.5.1996 for acquisition of land in Village Bharjwanoo, Tehsil Sundernagar, District Mandi for the purpose of protection of cause way-cum- submersible bridge at Suketi Khad in Tehsil Sundernagar. The land of respondent No.1 was also acquired by way of this notification issued, which measured 2-15-6 bigha, situated in village Bharjwanoo, Tehsil Sundernagar, District Mandi. The Collector entered into the reference and on conclusion of the proceedings, he gave an award vide which the compensation was awarded to respondent No.1 at the rate of Rs.14,422/- per bigha alongwith other compulsory charges etc. Respondent No.1 filed a petition under Section 18 of the Act before the Court of the learned District Judge for enhancement of the compensation. The learned District Judge, vide his impugned award, enhanced the compensation to Rs.1.00 lac per bigha. Being aggrieved, the appellant has come up in appeal before this Court. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the appellant were that the compensation has been enhanced by the court of the learned District Judge ignoring the evidence and the compensation awarded by the Collector was just and reasonable, which deserved no enhancement. It was also submitted that various factors - 3 - are required to be looked into while determining the market value of the land on the date of acquisition, which have not been considered by the learned trial Court in its true spirit and, therefore, the appeal deserves to be allowed accordingly. To substantiate his above submissions, the learned counsel for the appellant had relied upon the decision in Atma Singh (dead) through LRs. and others versus State of Haryana and another, (2008) 2 Supreme Court Cases 568, in which their Lordships had made a reference to number of decisions and had concluded in para 14 as under: “14. The reasons given for the principle that price fetched for small plots cannot form safe basis for valuation of large tracts of land, according to cases referred to above, are that substantial area is used for development of sites like laying out roads, drains, sewers, water and electricity lines and other civic amenities. Expenses are also incurred in providing these basic amenities. That apart it takes considerable period in carving out the roads making sewers and drains and waiting for the purchasers. Meanwhile the invested money is blocked up and the return on the investment flows after a considerable period of time. In order to make up for the area of land which is used in providing civic amenities and the waiting period during which the capital of the entrepreneur gets locked up a deduction from 20% onward, depending upon the facts of each case, is made.” Reliance was also placed upon the decision in State of Haryana versus Gurbax Singh (dead) by LRs. and - 4 - another, (2008) 11 Supreme Court Cases 65, wherein their Lordships had considered the term compensation under Section 23 of the Act and had observed that the reliance had been placed upon the sale deeds of 1981 for fixing compensation for acquisition of land in 1983. The marginal enhancement of compensation at the rate of 12% per annum for two years since acquisition was held to be justified. On the other hand, the submissions made by the learned counsel for respondent No.1 were that the learned District Judge had considered the sale deed prior to the date of issuance of the notification and reliance was, therefore, rightly placed upon Ext.PB, the copy of the sale deed. Thus, it was submitted that the learned District Judge had considered the question as to the location of the land, which was not far away from the National Highway and accordingly there is no merit in the appeal which deserves to be dismissed. It was also submitted that the appellant had failed to cross examine PW-2 Baldev that the land was just at some distance from the National Highway and the statement of the witness has to be accepted by the Court when there was no cross examination on this material point. In support of the above submission that the statement of the witness has to be accepted when not cross examined, learned counsel for respondent No.1 had relied upon the decision in Kansi Ram versus Jai Ram and others, AIR(4) 1956 Himachal Pradesh 4, wherein it was observed that where the witnesses are not tested by cross - 5 - examination, their evidence may be accepted unless there are any inherent improbabilities. Reliance was also placed upon the decision of the Patna High Court, which had been referred to in this decision also. The decision in Karnidan Sarda and another versus Sailaja Kanta Mitra, A.I.R. 1940 Patna 683, shows that the following observations were made by the Court: “It cannot be too strongly emphasized that the system of administration of justice allows of cross examination of opposite party’s witnesses for the purpose of testing their evidence, and it must be assumed that when the witnesses were not tested in that way, their evidence is to be accepted unless of course there are any inherent improbabilities.” This decision had been relied upon by the learned Judicial Commissioner of this Court in the case of Kansi Ram (supra). Coming to the evidence upon which the learned trial Court came to the conclusion that compensation deserves to be enhanced, reliance was placed upon the copy of the sale deed Ext.PB, which was the most material document and which could have been considered. This sale deed Ext.PB is dated 2.3.1996, which shows that the land measuring 0-2-16 bigha in Mohal Bharjwanoo, Tehsil Sundernagar was sold for a sum of Rs.22,500/-. Accordingly, per bigha value came to Rs.1,40,000/-. The notification under Section 4 of the Act was issued on 3.5.1996 and since this sale deed was executed two months prior to the issuance of the notification, the same was - 6 - relevant and was rightly relied upon by the learned trial Court. The learned trial Court had also referred to the sale deed Ext.PW-6/A dated 18.1.1996, vide which 3 biswas of land was sold for a consideration of Rs.96,000/-. A reference was also made to the testimony of PW-6 Ramesh Singh, who had sold this land, which shows that the land was sold at a price higher than Ext.PB and the value comes to over Rs.6.00 lacs per bigha. This land was in Mohal Ropa and not in Mohal Bharjwanoo, though, as has come up in evidence and shall be discussed below, both these Mohals are in Tehsil Sundernagar and contiguous to each other. But the mere fact that the Mohals are contiguous to each other does not lead to the inference that the value of the land in both these Mohals will be equal since their may be quite a distance in between these two Mohals. To my mind, before determining the compensation, the location of the land has to be considered and its proximity to the National Highway is a material consideration, as has been held in Union of India versus Mangat (dead) by LRs and others, AIR 2000 Supreme Court 3527, relied upon by the learned counsel for the appellant. A perusal of this decision shows that it was observed by their Lordships that the price of land which is land-locked and which is farther away from National Highway cannot be same as that which abuts the National Highway. It was further observed that the market value of land which abuts the National Highway is much more than the land which is away from it. - 7 - It follows from the above discussion that the location of land is a material consideration as to from how much distance the land in question was from the National Highway for arriving at a just compensation for the land acquired. A reference has to be made to the evidence led by both the parties accordingly. A perusal of the statement of Gajan Ram, petitioner, shows that he had stated that his land is at a distance of 10-15 yards from National Highway. This part of his statement was relied upon by the learned counsel for respondent No.1 on the ground that there was no specific cross examination on it. However, other material factors and other evidence has to be considered before placing implicit reliance upon this part of the statement made by the petitioner upon which there was no specific cross examination in regard to the distance, but it was suggested to this witness that the acquired land is far away from National Highway and Municipal area of Sundernagar, which suggestion was denied by respondent in his statement. Therefore, it cannot be said that this statement goes un-rebutted. Apart from the above, PW-2 Baldev admitted that there is a Khad in between Sundernagar tower and the village of the acquired land. He also admitted that this land is adjacent to Sundernagar-Rati Road. It was specifically suggested to him that the National Highway is about 6-7 km. away from this land, but he denied the suggestion though did not state voluntarily or otherwise as to the distance in between the acquired land and National - 8 - Highway. The statement of this witness rather suggests that this land is adjacent to another road known as Sundernagar-Rati Road. Nothing was extracted from the statement of PW-4 Jai Ram, Patwari, in regard to the distance of the acquired land from the National Highway, though he could be said to be a material witness. RW-1 K.C. Sharma, SDO, in his statement has stated that this land was in Panchayat area and is about 2 km. away from the National Highway and is adjacent to Suketi Khad. This witness was not cross examined on this part of statement and applying the same standard as was sought to be applied by the learned counsel for respondent No.1 in regard to the witnesses of the petitioner, this statement, which goes un-rebutted, leads to the inference that this land was 2.00 km. away from the National Highway. RW-2 Santosh Kumar has also stated that this land is 2-3 km. away from the National Highway and his statement also goes un-rebutted. From the above discussion, it is clear that this land was quite away from the National Highway and there is no specific evidence on record to show that it was near the National Highway or that because of its proximity, its value was more. The mere statement of PW-4 Jai Ram, Patwari, that the boundaries of Mohals Bharjwanoo, Ropa and Sundernagar are adjoining to one another is not sufficient to hold that the value of the lands of these three Mohals will be the same since it depends upon the location of the land in question from the National Highway and the - 9 - development that has taken place near the acquired land. The area of a Mohal may be stretching to any length, which may be quite far away from the National Highway and the evidence led in the present case clearly suggests that the land in question was about 2.00 km. away from National Highway and same value cannot be given for the land adjoining to National Highway or away from it. It is, therefore, clear that the learned trial Court had relied upon the sale deed Ext.PB which was executed prior to the issuance of Notification, vide which the value comes to Rs.1,40,000/- per bigha, but the learned trial Court, after considering the facts, had come to the conclusion that the value of the land can be said to be Rs.1.00 lac per bigha which findings, prima facie, do not appear to be incorrect and as such these do not call for an interference by this Court on any ground. No other point was urged during the course of arguments. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant and the compensation awarded by the learned trial Court can be said to be just in the facts and circumstances of the case. The respondent is also entitled to interest etc. as awarded by the learned trial Court, upon which no arguments were advanced and as such the appeal filed by the appellant is dismissed alongwith costs. - 10 - Cross Objections No.184 of 2007: I have also considered the assertions made in the cross objections filed by the Cross Objector/ respondent No.1 for enhancement of the compensation. Reliance was placed upon Ext.PW-6/A, sale deed, to submit that the value of the land should have been assessed at Rs.5.00 lacs per bigha. A perusal of Ext.PW-6/A, the sale deed dated 16.1.1996, shows that the land measuring 121 square meters (nearly 3 biswas) was sold for a sum of Rs.96,000/- and, therefore, the rate comes to Rs.32,000/-, per biswa, and the per bigha rate comes to Rs.6,40,000/-. However, a perusal of this sale deed clearly shows that a small piece of land was sold in different Mohal, namely, Ropa, which is not the same as the land in the present case and in the sale deed itself, it has been mentioned that this sale deed was executed for construction of a house for which normally a fancy price is paid. In view of the fact that the land sold vide sale deed Ext.PW-6/A was in different Mohal i.e. Ropa and only a small piece of land was sold, this sale deed cannot be relevant and, therefore, the compensation awarded does not call for any enhancement. As such, the cross objections are also dismissed. October 20, 2009. (V.K. Ahuja), (TILAK) Judge.