IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RFA Nos. 153, 154, 155, 156, 157, 158, 159, 160, 162, 163 and 164 of 2007. Date of decision 9.7.2008. 1. RFA 153 of 2007 LAC & Ors.v. Lachhmi Nand & ors 2. RFA 154 of 2007 LAC & ors v. Sohan Singh & ors. 3. RFA 155 of 2007 LAC & ors v. Baldev Singh & ors 4. RFA 156 of 2007 LAC & Ors.v. Heera Singh & ors. 5. RFA 157 of 2007 LAC & ors.v. Hem Dutt & ors. 6. RFA 158 of 2007 LAC & ors.v. Daya Ram 7. RFA 159 of 2007 LAC & Ors.v. Roshan Lal & ors. 8. RFA 160 of 2007 LAC & ors.v. Vidya Devi & ors. 9. RFA 162 of 2007 LAC & ors.v. Kanta. 10. RFA 163 of 2007 LAC & ors.v. Shyam Dutt Sharma 11. RFA 164 of 2007 LAC & ors.v. Tapinder & ors. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 For the appellant(s) Ms. Ruma Kaushik, Addl. Advocate General. For the respondent(s) Mr. Ramakant Sharma, Ms. Devyani Sharma, Advocates. For respondents 1,3 & 4 Mr. Sunil Chauhan, Advocate. in RFA 154/07 Dev Darshan Sud, J. All these appeals are being disposed of by this common judgment as they arise out of the same award pertaining to the same notification. The 1 Whether Reporters of Local Papers are allowed to see the judgment? - 2 - learned Reference Court by its order dated 17.5.2003, consolidated all the reference petitions out of which these appeals arise. It was ordered: “17.5.2003 Present: Shri J.S.Kanwar, Adv. For the petitioners. Shri S.S.Bhatti, Ld. DA for respondents. No rejoinder is intended to be filed. Since the reference petitions bearing No. 17-N/4 of 2002, titled Sohan Singh & ors v. LAC & ors, No. 18-N/4 of 2002, titled Baldev Singh & ors v. LAC & ors, No. 19-N/4 of 2002, titled Hira Singh & ors v. LAC & ors, No. 20-N/4 of 2002, titled Hem Dutt & ors v. LAC & ors, No. 21-N/4 of 2002, titled Daya Ram v. LAC & ors, No. 22- N/4 of 2002, titled Roshan Lal & ors v. LAC & ors, No. 23-N/4 of 2002, titled Vidya Devi & ors v. LAC & ors, No. 24-N/4 of 2002, titled Jharkhoo & ors v. LAC & ors, No. 25-N/4 of 2002, titled Kanta Devi v. LAC & ors, No. 26-N/4 of 2002, titled Shyam Dutt & Ors. v. LAC & ors and No. 32-N/4 of 2002, titled Tapender Singh & ors v. LAC & ors. arise out of the same award dated July 31, 2000 and almost - 3 - similar evidence is sought to be led by the parties therein, all these cases are ordered to be consolidated with reference petition No. 17-N/4 of 2000, titled Sohan Singh and ors v. LAC & ors. The evidence to be led in this case shall also be read in the consolidated cases. On the pleadings of the parties, the following issues are framed for trial: 1. Whether the compensation awarded to the petitioners, Sohan Singh & ors, Baldev Singh & ors v. LAC & ors, Hira Singh and ors, Hem Dutt & ors, Daya Ram, Roshan Lal & ors, Smt. Vidya Devi & ors, Jharkhoo & ors, Smt. Kanta Devi, Shyam Dutt & ors and Tapender Singh and ors. respectively is inadequate and is required to be enhanced? OPP. 2. Whether the petitioners are entitled to solatium under Section 23 of the Land Acquisition Act, If so, to what extent? OPP. 3. Whether the petitioners are entitled to interest from the date of possession? OPP. - 4 - 4. Whether the petitioners are entitled to damages for the trees etc. standing on the acquired land? OPP. 5. Relief. The issues have been read over and explained to the parties. No other issue arises nor claimed. For evidence of the petitioners to come up on 5.8.2003. The witnesses be summoned on filing of list of witnesses/PF/DM etc. within 3 days. Sd/ Additional District Judge, Sirmaur District at Nahan.” Reference petitions were filed by the claimants – respondents in each of these appeals against the award of the Collector which was common to all, being Award No. 37/2000 made on 31.7.2000. The land of the petitioners is situated in village Ranaghat and Nai Netti, in Tehsil Rajgarh, District Sirmaur. Notification under section 4 of the Land Acquisition Act, 1894 (hereafter referred to as the Act) was issued by the State Government on 9.6.1998 and published in the Rajpatra and newspapers etc. as required by law. The purpose of acquisition was the construction of Yashwant Nagar Dhamal Neripul Road in village Ranaghat, Tehsil - 5 - Rajgarh, Distt. Sirmaur. The Collector passed the award on the basis of the classification of the land. In addition, compensation of fruit bearing trees and interest at the statutory rates was awarded to the claimants. The grievance of the petitioners was regarding the adequacy of compensation. One of the grounds urged before the learned District Judge was that the Collector did not take into consideration factors such as nearness of the land to facilities such as to School, Ayurvedic hospital, veterinary hospital, telephone office, post office, Panchayat Bhawan, office of the Irrigation and Public Health Department, Forest Office and office of the Electricity Board etc. The respondents claimants submitted that the assessment had to be made with respect to the potentiality of the land and not classification as has been done by the Collector. This estimation of just compensation and potentiality was to be made on the basis of the fact that the road passes through a number of villages. The road was of primary importance as it was the connecting link between the interior of Shimla hills and District Sirmaur and Solan. The claimants also prayed for compensation for the - 6 - damage caused to their houses, orchards etc. by dumping of debris etc. Parties led evidence and the learned Reference Court, vide its judgment, enhanced the compensation payable to Rs.2 lakhs per bigha. At this juncture, it must be noted that the State, barring tendering Ex.DA, sale deed in evidence, no other evidence was produced. The order dated 9.3.2004 passed by the learned Reference Court records that the evidence of the witnesses has been closed in the affirmative and the respondents were directed to produce their evidence on 14.5.2004. On that date, the Court notes that no steps were taken for summoning evidence and an opportunity was prayed for summoning evidence on 18.6.2004, on which date only sale deed Ex.DA was tendered in evidence. This fact is being noted as it has been submitted as one of the grounds by the appellants before this Court that the value of the acquired land has not been determined in accordance with law as the evidence of the appellants – State has not been considered by the reference Court. I have heard the learned counsel for the parties and gone through the record. Learned - 7 - Additional Advocate General submits that the learned Reference Court was in error in assessing the rate of Rs.2 lakhs per bigha as compensation. Learned counsel has placed reliance on two judgments of the Supreme Court, namely H.P.Housing Board v. Bharat S. Negi and others, (2004) 2 SCC 184 and U.P. State Industrial Development Corporation Ltd. v. Shakti Bhatta Udyog and others, AIR 2004 SC 4388 to urge that the award passed is against law as according to these two judgments, it is the potential value of the land which is to be considered. The other ground which is taken as ground (e) is contradictory to this ground as it is urged that the reference Court was wrong in assessing the value of the land without considering its classification. Obviously, one of the two grounds would survive for determination and both cannot be urged as grounds in support of their claim by the appellants. The evidence of the petitioners consisted of PW-1 Shri Hira Singh who proved on record the potential value of the land. He stated that the acquired land was worth about Rs. 7 to 8 lakhs per bigha as it was very fertile and on its potentiality - 8 - as it had been acquired for the purpose of construction of Yashwant Nagar Neripul road. The land of the claimants was very fertile as it was producing cash crops from which the petitioners were earning Rs.1,50,000/- to Rs.2 lakhs. He proved on record the nearness of the land to important civic facilities/ amenities like 10+2 school, Ayurvedic hospital, telephone office, post office, Mahila Mandal Bhawan, Panchayat Bhawan, Irrigation and Public Health office, Forest office, and electricity office. His testimony was that the acquired land was on the banks of Giri river from where water was being drawn by the claimants for the purposes of irrigation. He establishes that the acquired land is similar to lands as in villages Ranaghat and Nai Netti and Neri, Jugela. He proves that villages Ranaghat, Maloh, Mashog, Dharoli, Shargaon and Neri Jugela are adjacent to and contiguous with village Nai Netti. Learned District Judge, Nahan passed an award on 6.3.2003 determining the market value of the land as Rs.2 lakhs per bigha. His testimony has remained unrebutted even in cross examination including the fact of contiguity of the land which - 9 - was subject matter of award dated 6.3.2003 as well as the nature and quality of the land being similar. PW-2 Nitya Nand, Patwari of Ranaghat has stated on oath on the basis of record that mauza Neri, Jugela, Nai Netti, Dharoli, Shargaon, Maloh, Mashog and Ranaghat are contiguous to each. He also proves the quality of the land being similar and Yashwant Nagar- Neripul – Chaila Road passing through all these villages. He proves that all these villages are contiguous to each other and are in one straight line from each other. The claimants – respondents also placed on record documentary evidence Ex. P-1 which is an award dated 6.3.2003 passed by the learned Reference Court regarding the acquisition of the land for the same road, Ex.P-2, copy of the judgment of this Court in RFA 212/2003 filed against this award in which compensation @ Rs.2 lakhs per bigha was maintained, but interest was awarded from the date of notification under Section 4 in accordance with the provisions of the Act, Ex.PA, copy of the award dated 25.8.2005 again awarding Rs.2 lakhs per bigha as compensation for the acquired land. It was not contested or disputed before me that these lands of - 10 - which the award has been made were also acquired for the construction of road which is involved in the present appeals. The claimants also placed on record Exs. P-3, P-4, P-5 and P-6, copies of the sale deeds which according to the learned counsel appearing for the claimants, proves that the value of the acquired land is more than Rs.3,50,000/- per bigha, which should form the basis for award of compensation of the acquired land in these appeals, as the similarity of the land has been proved on record. The only evidence on record by the respondent is Ex.DA, sale deed dated 18.9.1997. The document being a registered deed is admissible in evidence perse. No attempt has been made to lead evidence to show as to whether the sale consideration is bonafide, the quality of the land is the same as is subject matter of acquisition proceedings in the present appeals etc. Mere tendering of the document does not prove these factors. The learned Reference Court, on the basis of evidence on record, did not accept the value of the land on the basis of the sale deeds, but placing reliance on the testimony of PW-1 and PW-2 on the quality of the land, its contiguity to other lands - 11 - acquired which were subject matters of Exs. P-1 and PA and the judgment of this Court Ex.P-2 awarding flat rate of Rs.2 lakhs. Reliance placed by the learned Additional Advocate General on the judgment of the Supreme Court in H.P. Housing Board’s case (supra) is misplaced. In that case, the Supreme Court held that when compensation is determined under Section 23 of the Act, all proved instances of comparable sales need to be taken into consideration. On the basis of the record, the Supreme Court fixed the value of the land as an average of the sale instances. In U.P. State Industrial Development Corporation’s case (supra), the Supreme Court held that considering the location and advantage of the land, the value increased by the High Court was neither illegal nor against law. In the present appeals, the testimony of the witnesses produced by the claimants is unrebutted. There is nothing on record to show or establish that the land was not possessed of the potentiality as determined by the learned Reference Court. The State had ample opportunity to prove its case by adducing evidence, oral or documentary, which opportunity it wasted. - 12 - Surely, when large tracts of land are being acquired for the purposes of construction of road, it cannot be accepted that evidence is lacking with the State to prove the nature and quality of the land or its potentiality. Merely, tendering one sale deed and then saying that it should form the sole basis for determination cannot be accepted. If all the sale considerations are considered and averaged, the value of the land would come to more than Rs.3,50,000/- per bigha and if a deduction of 331/3% is made, the value of the land would be more than awarded by the Reference Court. There is no evidence to show as to why the two awards Ex.P-1, Ex.PA and the judgment of this Court Ex. P-2 affirming the value at the rate awarded by the reference Court cannot be accepted. There is again no evidence on record to show that the acquired land and the land subject matter of the two awards is of different potentiality. Rather the similarity of potentiality stands proved by the petitioners. One other fact needs to be noticed, that is, that an application being CMP 792 of 2008 was filed by the respondents – claimants placing on record the award passed by the learned District - 13 - Judge, Sirmaur at Nahan for acquisition of land made for construction of the Yashwant Nagar-Dhamla- Neripul Road. This also relates to the same road and a sum of Rs.2 lakhs per bigha has been awarded by the Land Acquisition Collector. The State has not only accepted this award but compensation due has been released to the claimants without any opposition from the State. It is admitted before me that no appeal has been preferred against this award. Considering the totality of the evidence and the fact that the learned Court has based its award on two other awards Ex. P-1, Ex. PA and judgment of this Court Ex. P-2 approving the compensation paid in one of the awards Ex.P-1, I find that there is no merit in these appeals which are accordingly rejected. There shall be no order as to costs. All pending applications shall stand disposed of. CMP(M) 225 and 226 of 2008 in RFA 153 of 2007. CMP(M) 225 of 2008 has been filed by the appellant for bringing on record the legal heirs of deceased respondents 13 Smt. Chamko, 24 Budh Ram and 36 Ram Saran. CMP(M) 226 of 2008 has been filed with a prayer for condonation of delay in moving the - 14 - application under Order 22 Rules 4 and 9 of the Code of Civil Procedure. Initially, I was not inclined to allow the applications as the death of each respondent constitutes a separate cause of action which cannot be clubbed together and delay has also to be explained for each of the deceased respondent. However, at this stage, rejection of the application would have meant interminable delay in the disposal of the appeal and it is for this reason that I have allowed these applications which otherwise shows scant regard for the pleadings and procedure of law and a bureaucratic approach which cannot be but condemned. Both these applications are allowed. The legal representatives are directed to be brought on record of the case. RFA 153 of 2007. This appeal also pertains to the acquisition of land for the same road. The reasoning given by the learned Reference Court is based on the award made by the learned District Judge, Sirmaur Ex.PA, affirmed by this Court in its judgment dated 9.1.2004 in RFA 212 of 2004. The petitioners produced sale deeds Exs. P-3 to P-5 and again the State only tendered in evidence Ex.DA and - 15 - nothing more. I do not see any reason to take a different view in this appeal, which is accordingly dismissed. There shall be no order as to costs. July 9, 2008 (PC). (Dev Darshan Sud), J.