IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RFA No. 334 of 2006 Date of Decision : July 30, 2009 Smt. Bimla Devi and others Appellants. Versus State of H.P. and another. Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the appellants : Mr. Jagdish Thakur, Advocate, for the appellants. For the respondents : Mr. Vivek Thakur, Additional Advocate General and Mr. J. S. Rana, Assistant Advocate General for the respondents. Sanjay Karol, J. (Oral) The claimants have assailed the impugned award dated 8.3.2006 passed by the District Judge, Hamirpur, in Land Reference Petition No. 1 of 2004, titled as Smt. Bimla Devi and others versus State of H.P. and another. Admittedly the claimants were owners of the land comprised in khasra Nos. 14/1, 15/1, 24/1, 35/1, 36/1, 39/2, 42/1 and 47/2 measuring 3 kanals and 14 marlas situate in Revenue Estate Kadriana, Mouza Mehalta, Tehsil Hamirpur. The undisputed fact is that the possession of the said land was actually taken over by the 1 Whether reports of Local Papers may be allowed to see the judgment? 2 Government in the year 1961 without any payment of compensation to the claimants. The land was utilised for construction of Hamirpur – Shimla National Highway. The claimants were constrained to file Civil Writ Petition No. 1334 of 2002 and this Court vide order dated 22.5.2003 directed the State to take steps for initiation of acquisition proceedings under the Land Acquisition Act. As a consequence thereof, the State of Himachal Pradesh issued a notification dated 1.12.2003, under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) which was published in the H.P. Rajpatra on dated 9.12.2003. The Collector Land Acquisition passed his Award No. 53 dated 2.6.2004 under Section 11 of the Act. Even though the claimants had demanded compensation of Rs. 60,000/- per marla but however the Collector Land Acquisition determined the market value of the acquired land to be @ Rs. 15,000/- per marla. The extent of total acquired land is 3 Kanal and 14 Marlas ( 1 Kanal = 20 Marlas). In terms of the Collector’s award the claimants stand awarded the following compensation: “TOTAL COMPENSATION The amount of compensation finally determined and awarded the acquired land under this award is as under:- 1. Cost of land. Rs. 1110000/- 2. Compulsory Acquisition Charges u/s 23(2) @ 30% Rs. 333000/- 3 3. 12% Addl. market value u/s 23(1-A) from the date of publication u/s 4 to the date of awarded of the Collector i.e. 55104/- 4. Interest @ 9% and 15% with effect from 1.12.2003 to 30.4.2004 41328/- Total Rs. 1539432/- ” Aggrieved by the same the claimants filed Land Reference Petition under Section 18 of the Act seeking further enhancement of compensation. The same was opposed by the State and based on the pleadings of the parties, the Court below framed the following issues: “1. Whether the petitioners have not been paid the market value of the acquired land as alleged?OPP 2. Whether compensation of the acquired land was not assessed or paid, if so, what was the price of the trees? OPP 3. Whether due to acquisition of other un-acquired land of the petitioners has been severed, if so, its effect? OPP 4. Whether apportionment of compensation is not proper? OPP 5. Relief. Opportunity to lead evidence was afforded to the parties and after appreciating the material on record the Court below dismissed the reference petition for the reasons that (i) in the year 1961 when the possession of the land was taken the possibility of the State 4 having obtained the consent of the owners could not be ruled out, (ii) sale deeds Ext. P1 and Ext. P2 proved on record by the claimants could not be relied upon and made basis for determining the market value of the acquired land for the reason (a) that land sold in terms of sale deed Ext. P2 was sold by the claimants themselves hence the possibility of sale price having been inflated could not be ruled out and (b) there was no evidence to prove the similarity of location, shape, size, user and potentiality of the exemplar sale land with the acquired land, (iii) the exemplar sale deeds pertain to sale of small parcels of land whereas the claimants land was a large chunk of land, (iv) by deducting 60% from the market value determinable from exemplar sale deeds, due to inherent disadvantages, still the market value would not be more than what stands awarded by the Collector, (v) Sale deeds Ext. RW1/A and Ext. RW1/B produced by the State were admissible in evidence under Section 51-A of the Act and the rates determined by the Collector and compensation awarded in terms thereof was almost similar to the market value determinable in terms thereof. Mr. Jagdish Thakur, learned counsel for the claimants has assailed the award for the reason that the Court below not only failed to correctly appreciate the material in its entirety but also take into account the settled position of law as held by this Court and the Apex Court. 5 Per contra Mr. Vivek Thakur, learned Additional Advocate General ably assisted by Mr. J. S. Rana, learned Assistant Advocate General has supported the award for the reasons stated therein. However it is fairly not disputed that the acquisition proceedings were initiated pursuant to the orders passed by this Court in CWP No. 1334/2002. It is a settled position of law that a reference petition under Section 18 of the Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition Officer in his award unless the same is produced and proved before the Court. The award passed by the Land Acquisition Collector is merely an offer made by the Land Acquisition Officer. The Court is not to correct the error or affirm, modify or reverse the conclusions arrived at by the Land Acquisition Officer, as if it were an Appellate Court. The Court is to treat reference petition as original proceeding before it and determine the market value afresh, on the basis of the material produced before it and the onus to prove that the market value of the land is higher than what stands awarded by the Collector or that price offered for the acquired land is inadequate is upon the claimant. The Court has to appreciate and assess the market value based on the material produced on record. While determining the market value of the land the Court inter alia has to take into account various following factors (i) the 6 date of initiation of the acquisition proceedings (ii) the value has to be determined as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price on that date. It is to be assumed that the vendor is willing to sell the land at a reasonable price. (iii) Genuine sale transactions being proximate to the time of acquisition and not motivated on any account including on account of resultant improvement in development prospects are to be taken into account. The plus and minus factors with regard to the smallness of size, location advantage and potential of use are to be taken into account while determining the market value. [Chimanlal Hargovinddas versus Special Land Acquisition Officer, Poona and another, AIR 1988 SC 1652] The general trend of increase of land prices as also the necessary deductions to be made with respect to certain disadvantages are to be kept in mind while determining the market value. [General Manager, Oil and Natural Gas Corporation Limited versus Rameshbhai Jivanbhai Patel and another, 2008 (11) Scale 637] The starting point for the purposes of calculating the amount of compensation due and payable to the claimants under the Act is the date of publication of the notification under Section 4 of the Act regardless of the fact whether the possession of the acquired land is taken prior to the issuance thereof. [Siddappa Vasappa Kuri and 7 another versus Special Land Acquisition Officer and another (2002) 1 SCC 142 ] The Apex Court in Sunder versus Union of India, 2001 (7) SCC 211 has also clarified that the claimants would be entitled to interest on solatium awarded under the provisions of the Act. The Apex Court in Kasturi and others versus State of Haryana, (2003) 1 SCC 354 and H.P. Housing Board versus Bharat S. Negi and others, (2004) 2 SCC 184 has justified deduction to the extent of 1/3rd of the market value determined by the Courts on the basis of proven material on record. The Apex Court in ONGC Ltd. versus Sendhabhai Vastram Patel and others, (2005) 6 SCC 454 has reiterated the view earlier taken in Chimanlal Hargovinddas (supra) and has held as under: “While determining the amount of compensation payable in respect of the lands acquired by the State, indisputable, the market value therefore has to be ascertained. 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 a 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 acquiring of lands made in the same village and/or neighboring villages. Such a judgment 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. 8 Instances of sale in respect of the similar land situated in the same village and/or neighbouring villages should have been taken on guiding factors by the Reference Judge as also by the High Court. In the absence of any better evidence, the Reference Judge as also the High Court could have made addition in the sale price for the land as evidenced by the said deeds of sale.” The Apex court has reiterated that there is no bar for considering exemplars pertaining to small transactions of sale subject however the Court takes into account the various attending plus and minus factors. [Ravinder Narain and another versus Union of India (2003) 4 SCC 481 and Rishi Pal Singh and others versus Meerut Development Authority and another, (2006) 3 SCC 205] With the aforesaid principles of law the matter needs to be considered in the facts of the present case. I am of the considered view that the reasons assigned by the Court below for dismissing the reference petition are based on surmises, conjectures and are contrary to record, bordering on the level of perversity. There was no foundation for the Court to have presumed that the claimants had consented to the construction of the road on their land. The fact that the claimants had relentlessly persued the matter with the authorities for grant of compensation is evident from the record. The instant land acquisition proceedings were initiated only with the intervention of this Court. The claimant had constitutional right for use and enjoyment of his property. He could not be deprived of his property save by authority of law. 9 Importantly it is also not the case of the State that the claimants had granted consent for the use of their property. This Court is conscious that no compensation can be awarded to the claimants in these proceedings, for the use and occupation of their property prior to the initiation of the instant acquisition proceedings. The Court below has relied upon Section 51-A of the Act to consider the sale deeds Ext. RW 1/A and Ext. RW 1/B placed on record by the State. The said sale transactions were proved by Sh. Jagan Nath Sharma (RW-1), Registration Clerk, Tehsil Hamirpur. He has simply proved the factum of registration of the same. The Apex Court in Cement Corpn. of India Ltd. versus Purya and others, (2004) 8 SCC 270 has held that the scope of Section 51-A of the Act would not take in its sweep the right of the parties to prove the factum of comparability of the acquired land with that of the exemplar sale land with regard to the similarity in use, potential, size and nature between the two lands. Hence reliance by the Court below on the said exemplar sale transactions is totally misconceived as evidently there is no evidence on record to prove the said fact. The respondent-State has only examined Sh. Jagan Nath Sharma (RW-1). Importantly this witness himself has admitted the execution of sale transactions Ext. P-1 and Ext. P-2 proved on record by the claimants. 10 Similarly the reasons for not considering the sale transactions placed on record by the claimants for the reasons that it pertained to small parcel of land are contrary to the settled position of law. The said exemplar sale deeds could not have been rejected solely on this ground. Undisputedly the claimants have proved on record sale transactions Ext. P-1 and Ext.P -2 through the testimony of Shri Suresh Kumar (PW-1) and Shri Girdhari Lal (PW-2). In terms of sale deed Ext. P-1 two marlas of land situate in revenue estate Kadriyana was sold on 24.8.2001 for a sum of Rs. 80,000/-. The market value in terms thereof comes to Rs. 40,000/- per marla. Sale deed Ext. P- 2 admittedly executed by the claimants on 11.11.2003 pertains to sale of one marla of land, also situate in revenue estate Kadriyana for a sum of Rs. 47,500/-. It is true that the claimant Smt. Bimla Devi, as owner did not examine herself to prove the genuineness of the said sale transactions but however other claimants No. 2 Shri Naresh Kumar and No. 3 Shri Suresh Kumar her sons and attorney holders who sold the land deposed accordingly. Shri Suresh Kumar (PW-1) categorically deposed that sale deed Ext.P-2 was executed by him. Importantly he has not been cross examined by the respondent- State with regard to the genuineness of the sale price. Assuming hypothetically that the said sale transactions could not have been made basis for determining the market value of the acquired land, even then the claimants have been able to sufficiently 11 prove sale transaction as depicted vide sale deed Ext. P-1 whereby the market value comes to Rs. 40,000/- per marla. With regard to the comparability of the exemplar sale land with that of the acquired land I am convinced that the depositions of Sh. Suresh Kumar (PW-1) and Sh. Girdhari Lal (PW-2) are sufficient. PW-1 has categorically stated that adjacent to his acquired land commercial establishments i.e. show room of Maruti-car and Jagdamba Udyog have been established. There are other shops which have been established in close proximity in between these two big establishments. The acquired land is in close proximity of commercial establishment run in the name of Jagdamba Udyog where there are 40 to 50 shops. PW-2 has further deposed that the acquired land was suitable for setting up commercial establishments and the exemplar sale land is just at a distance of 15 to 20 yards from the acquired land. Thus in my view the Court below has seriously erred in holding that the statements of the claimants with regard to the similarity of location and potential is vague and unspecific. The Court below wrongly applied deduction to the extent of 60%. The acquired land had great potential of being put to commercial use. The said sale transactions being proximate to the time of acquisition, can be considered for determining the market value of the acquired land. However due to the smallness in their size some deductions are required to be carried out. Taking the mean of the 12 exemplar sale deeds Ext. P-1 and Ext. P-2 to be determinative of true market value, I feel deduction to the extent of 33% on the same would be justified. Thus the market value of the claimants land as on the date of acquisition can be determined to be Rs. 40,000 + Rs. 47,000 = Rs. 87,000 / 2 = Rs. 43,500. (33% of Rs. 43,500 = 14355.) Hence Rs. 43,500 – Rs. 14,355 = Rs. 29,145/- per marla. Further in the award passed by the Collector the claimant is held entitled to statutory interest from 1.12.2003 upto 30.4.2004, whereas the award was passed on 2.6.2004. The interest has been calculated perhaps as on the date when the Collector had sought approval of the State. The claimants are entitled to the amount of statutory compensation under Section 23(1)-A of the Act, from the date of Publication of notification upto the date of award. Accordingly instead of Rs. 55104/- and Rs. 41328/- claimants are entitled to Rs. 66,600/- and Rs. 67,932/- respectively. For the aforesaid reasons the appeal is allowed.The impugned award is modified accordingly. The claimants shall be entitled to all statutory compensations on the enhanced amount in accordance with law and more particularly in accordance with the law laid down by the Apex Court in Sunder versus Union of India, 2001 (7) SCC 211. (Sanjay Karol), Judge. July 30, 2009 (PK) 13