RFA No.962 of 1993 - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RFA No.962 of 1993 Date of decision: 17.10.2008 **** Dharambir Singh (deceased) etc. . . . . Appellant(s) Versus State of Haryana. . . . . Respondent(s) **** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.Rajesh Garg, Advocate with Mr.Hitesh Pandit, Advocate. Mr.Rajiv Kawatra, Sr.DAG, Haryana. Mr.Tarundeep Kumar, Advocate for Mr.Hemant Bassi, Advocate. **** RAKESH KUMAR JAIN, J These 13 appeals, namely, RFA Nos. 962 to 967, 1095, 1142, 1259 to 1261, 1358 and 2303 all of the year 1993, filed by the landowners/claimants are being disposed of by a common order as these involves common question of law and fact. Land measuring 3.25 acres (5 bigha and 4 biswas) was proposed to be acquired vide Notification issued under Section 4 read with Section 17 of the Land Acquisition Act, 1894 (in short ‘the Act’) published in the Haryana Government Gazette on 18.8.1987 for the public purpose, namely, for the development and utilization of land for construction of sector road of Sector 4 under the Haryana Urban Development Authority Act, 1977 by the Haryana Urban Development Authority (in short ‘HUDA), in the area of village Gurgaon H.B. No.55, Tehsil and District, Gurgaon. Subsequently, vide notification under Section 6 of the Act issued on 18.8.1987 and published in the Haryana Government Gazette on the same date, RFA No.962 of 1993 - 2 - the area of land measuring 3.25 acres, which was earlier proposed was declared to have been acquired for the aforesaid purpose. Land measuring 3.25 acres was classified as Chahi (2 bigha 9 biswas), Magda (0 bigha 11 biswas) and Banjar (2 bigha 4 biswas). The land Acquisition Collector, Urban Estate, Haryana, Gurgaon vide his award No.12 for the year 1987- 88 dated 30.12.1987 treated the acquired land as one compact block and awarded a uniform rate of Rs.1,30,000/- per acre. Aggrieved against the award of the Collector, the landowners filed objections under Section 18 of the Act in which it was, inter alia, alleged that the market value of the acquired land was not less than Rs.300 per sq. yard on the date of notification as the acquired land was situated near residential locality of Sector 4, Railway Station, Gurgaon, Industrial Estate and is part of Gurgaon City being situated within the municipal limits. It was further averred that the acquired land is under unauthorized possession of HUDA department since 1968 as HUDA had constructed the road in the year 1968, therefore, the landowners claimed interest from the date when the possession of the land was taken by the HUDA. In reply, filed by the land Acquisition Collector , the averments made in the claim-petition were denied and it was alleged that the award was fair, adequate, reasonable and fully in accordance with law. Both the parties led their respective evidence. The relevant sale deeds produced by the claimants were considered by the reference Court and were tabulated in the following manner: - Ex.No. Area sold in Sq.Yd. Date of sale Rate per Sq.Yd. P3 200/- 9.7.85 200/- P4 201/- 12.7.85 199/- P7 200/- 1.8.85 120/- P8 200/- 16.10.85 125/- P9 200/- 8.3.85 110/- P11 300/- 11.3.85 100/- P15 200/- 7.1.85 220/- P28 655/- 1.4.86 125/- RFA No.962 of 1993 - 3 - (Agreement to sell) 1200/- (Average 150/- per sq.yd.) The average of all the aforesaid sale deeds were taken out to be Rs.150/- per sq. yards and after applying a usual cut of 1/3rd an amount of Rs.100/- per sq. yard was awarded as compensation which was Rs.3,54,000/- more than the award of the Collector. Learned counsel for the appellants have submitted that the reference Court had committed an error of law in rejecting the document Ex.P17, copy of the judgment of the High Court in which parties to the lis came to a compromise on 17.5.1991 for a strip of land measuring 125’ x 6’ @ Rs.25,000/- which comes to Rs.297/- per sq. yards. Counsel for the appellant has further submitted that even as per Ex.P16, copy of the judgment dated 15.1.1990, land acquired on 22.3.1984 in village Gurgaon was assessed @ Rs.80 per sq. yard whereas, in the present case, the notification has been issued on 18.8.1987 i.e. almost 3½ years later, therefore, the appellants are entitled, in the alternative increase of at least 10% in view of decision of Supreme Court in the case of “Special Land Acquisition Officer, BYDA, Bagalkot vs. Mohd. Hanif Sahib Bawa Sahib” AIR 2002 SC 1558, keeping in view of the rising trend of price of land in Gurgaon. It is also submitted by counsel for the appellants that the reference Court has committed an error in not awarding interest in respect of the acquired land which was in unauthorized possession of HUDA since 1968. As against this, counsel for the respondent/State has argued from the documents available on record Ex.P18 to P27 and P34 it is proved that the claimants have filed the suit claiming themselves to be owner in possession of the land in question in which status quo was ordered on 4.2.1987 and after the announcement of award on 30.12.1987 those suits were got dismissed as withdrawn on 24.8.1988. RFA No.962 of 1993 - 4 - Thus no possession was taken earlier as there was a restraint order by the Civil Court against the acquiring authority. I have heard both the counsel for the parties and perused the record. Insofar as, the first contention of the counsel for the appellant is that they should be allowed compensation in terms of the order passed by this Court in Ex.P17 is concerned, I am in agreement with the respondent/State that the said evidence Ex.P17 is totally irrelevant and cannot be considered for determining the compensation in the present case. Ex.P17 is an order of the High Court in RSA No.116 of 1979 titled as “Punjab Wakf Board Ambala Cantt. Vs. Niranjan Parkash”. In the said case Panjab Wakf Board filed the suit for permanent injunction alleging that Khasra No.2321 situated in village Gurgaon is a graveyard where a Dargah and certain graves exits. Urs is celebrated every year. There is a passage shown in red colour with letters ABCD for going to the said graveyard, which the defendants wanted to obstruct without any right causing inconvenience as it was the only passage to go to the graveyard. It was contended in the said case that the passage was an easement of necessity and the plaintiff Punjab Wakf Board is entitled to use the said passage as the same has been used from times immemorial. The said suit was contested by the landowner (Niranjan Parkash) alleging that neither there exist a passage ABCD nor the plaintiff had a right of easement to use the same for going to Dargah. The suit of the Punjab Wakf Board was dismissed as well as the appeal. Thus the Punjab Wakf Board came up in Regular Second Appeal before this Court in which, during the course of arguments, Punjab Wakf Board, who had lost in both the Courts below, offered a very fancy price of Rs.25000/- for agricultural land measuring 84 sq. yards which was gladly accepted by the defendant in that case and in view of the compromise between the parties the appeal was disposed of on 17.5.1991. In view of the peculiar facts and circumstances of the aforesaid case (Ex.P17), the same cannot be accepted as an exampler for the determination of compensation of the acquired land. Thus, in my view, Ex.P17 has been rightly rejected by the reference Court. RFA No.962 of 1993 - 5 - The second contention raised by the counsel for the appellants that the reference Court has erred in not awarding the interest for the land in question which remained under unauthorized possession of HUDA since 1968 is also ill-founded and contrary to the evidence available on record because document Ex.P22 is a plaint of the suit filed by Zile Singh against HUDA in which it was alleged that the plaintiff (Zile Singh) is in actual cultivating physical possession of the land in question and the defendant (HUDA) is adamant to forcibly dig out the pits and install sewerage pipelines in the land in question without taking recourse of law and had finally refused in this regard on 3.2.1987. In this suit the learned Sub Judge, Second Class, Gurgaon issued notice and granted injunction on 4.2.1987 (Ex.P18). Thereafter, the said suit was withdrawn by Zile Singh on 24.8.1988 (Ex.P21). Similar suits were filed by the other landowners and similar orders were passed in their cases also. Thus, it proves the fact that till the possession was taken on 30.12.1987 by the respondents there was a restraint order by the Court. Thus, the case set up by the landowners that the land in question was under the unauthorized possession of the HUDA since 1968 could not be proved. Insofar as alternative arguments raised by the counsel for the appellant in respect of Ex.P16 is concerned, that appears to be plausible because for the acquisition which took place on 22.3.1984 in village Gurgaon the value of the land was assessed @ Rs.80 per sq. yards. Keeping in view, the rising trend in Gurgaon as well as the decision of the Supreme Court in the Special land Acquisition Officer (supra) the landowners definitely deserves an increase of 10% per year for a period of 3½ year over and above the compensation assessed on 22.3.1984. Thus, the present appeals are hereby allowed. The appellants are held entitled to 10% increase for a period of 3½ years of Rs.80/- per sq. yards with all the statutory benefits in terms of the provisions of the amended Act with the costs of these petition. (RAKESH KUMAR JAIN) 17.10.2008 JUDGE RFA No.962 of 1993 - 6 - vivek