IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No. 102 of 2006 Date of Decision : June 25, 2009 Devku Devi …Appellant. Versus: State of H. P. & Others …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. G. D. Verma, Sr. Advocate with Mr. B. C. Verma, Advocate For the respondents. Mr. R. K. Bawa, Advocate General with Mr. Vivek Thakur, Addl. A. G. and Mr. J. S. Rana, Asstt. A.G. SANJAY KAROL, JUDGE (Oral). The claimant has assailed the impugned Award dated 15.12.2005 passed by the District Judge (F), Shimla H.P., in Case No. 1-S/4 of 2005/02 titled as Devku vs. State of H.P. & Others. The challenge is on the ground that the Court below has erroneously determined the market value of the acquired land and enhanced the compensation as awarded by the Collector by not only misreading and mis-appreciating the evidence on record but also ignoring the evidence led by the appellant herein, in totality. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 For the public purpose, namely, construction of Pump House, claimant’s land measuring 9 biswas, comprising khasra No.133, situate at village Mehli, Tehsil and District Shimla was acquired by the State. Notification under Section 4 of the Land Acquisition Act (hereinafter referred to as ‘the Act), intending to acquire the land was issued on 10.2.1999, which was published in the H.P. Rajpatra on 6.3.1999. The Collector Land Acquisition passed his Award No. 8/2000 dated 22.8.2000 and in terms thereof, the market value of the claimant’s acquired land was determined to be @ Rs.1,83,870/- per bigha (20 biswas make one bigha). The claimant herein, being aggrieved of the same filed Land Reference Petition u/s 18 of the Act, claiming enhancement of the compensation. Based on the pleadings of the parties, the Court below famed the following issues :- 1) Whether the compensation assessed by the L.A.O. is inadequate? …….OPP 2) What is the just amount of compensation paid to the petitioner? …….OPP 3) Relief. Opportunity to lead evidence was afforded to the parties. The Court below, by taking into account the disadvantageous position/location of the acquired land, on the basis of exemplar Sale Deed Ext.R-2 produced on record by the 3 State, determined the market value of the acquired land to be Rs.16,000/- per biswa. Other statutory payments were directed to be paid with effect from the date of publication of the Notification u/s 4 of the Act. I have heard the learned counsel for the parties and also perused the record. While determining the market value of the land acquired, the compensation has to be correctly determined and paid so that there is neither unjust enrichment on the part of the acquirer nor undue deprivation on the part of the owner. The price which a wiling vendor might reasonably expect to receive from the willing purchaser must be taken into consideration while at the same time disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy it must be disregarded. Potentiality of land is also to be considered based on materials as are available. (Para 8) Ravinder Narain v. Union of India (2003) 4 SCC 481: AIR 2003 SC 1987. Undisputedly, the Court below has not assigned any reason for ignoring the material placed on record by the claimants. There is no discussion as to why the oral or documentary evidence led by the claimant has been discarded. Importantly, Sale Deeds Ext.R-1 & Ext.R-2 produced by the State were only tendered in evidence and no oral evidence was led to prove the similarity with respect to use, nature and potential of the land covered by the exemplar Sale 4 Deeds with that of the acquired land. Hence, in my considered view, the same could not have been made basis for determining the market value of the instant acquired land, and the Court below erred in making the same as basis for passing the impugned award. The only oral evidence led by the State is that of Shri Gopal Krishan (RW-1). For proper appreciation of the same, the same is reproduced in totality as under:- “Stated that I am posted as junior Engineer in Irrigation and Public Health Department, Sub Division, Kasumpti, Shimla since September, 2002. I have seen the disputed Pump-house. This Pump-house is located at a distance of three Kilometres from I.A.S. Colony. I also produced the rough site plan prepared by me in this behalf as Ext.R-1. Xxxx Cross-examination on behalf of petitioner. It is correct that the Pump-house is located within Mehli village, but, it is at a distance of one and half Kilometer away from Mehli village. It is correct that Ext.R- 1 is incorrect.” The market value as reflected in the sale transactions Sale Deeds Ext.R-1 & Ext.R-2, is undoubtedly less in comparison than the sale deeds placed on record by the claimant but however, for want of other evidence the same cannot be made basis for determining the award. Statement of RW-1 is not of much significance for the said purpose. This is the 5 position as per the ratio of law laid down by the Apex Court in Cement Corpn. of India Ltd. v. Purya & Ors. (2004) 8 SCC 270. Ext.R-1 is the site map proved on the record by the State, from which it is evidently clear that the acquired land, on which the Pump house has been constructed is just at a distance of 430 mtrs. from the road leading to Junga. In between the said road and the road leading to Shimla town, the Himachal Pradesh Housing Board has set up a Housing Colony and at a short distance from the acquired land village Mehli is situated. In the vicinity, there is also a school and I&PH store. From the statements of Smt. Devku Devi (PW-1) and Shri Gopal Krishan (RW-1), it is also evident that the acquired land is just at a distance of 1.5 kms. from the residential Colony established to house the officers of the Indian Administrative Services. This Colony is commonly known as IAS Colony. That the acquired land is situated in Mohal Mehli is also not in dispute. It is true that the land is actually not situated in the precincts of village Mehli but it is evidently true that the land is well connected by road and has all modern facilities and potential of being put to atleast, residential if not commercial use. That the acquired land was a flat piece of land is undisputedly clear from the statement of Smt. Devku Devi (PW- 1), according to whom, she was also cultivating the same. She has deposed that at the time of the acquisition proceedings, the 6 rates of the acquired land were within the range of Rs.50,000/- to 60,000/- per biswa. She has further deposed that village Mehli is in close proximity to Kasumpti. Judicial notice can be taken of the fact that Kasumpti is a suburb of Shimla and within the Municipal limits. The focus of all construction and developmental activity is towards this part of Shimla Township. No doubt, she has admitted that her land is located near the Nallah, but however, that fact by itself would not make the exemplar sale transactions, placed on record by the claimants, to be irrelevant. Smt. Anuradha (PW-2) is the purchaser of the land sold in terms of Sale Deed 11.12.1998 (Ext.P-1) whereby 4 biswas of land situate in village Mehli was purchased for a sum of Rs.1,29,500/-. In terms of the said sale deed, market value of the land comes to Rs.32,350/- per biswa. This document may not be of much relevance as there is nothing on record to prove the similarity of the acquired land with that of the exemplar sale land. Shri Krishan Chand (PW-3) is the seller of land situate in village Mehli, as depicted vide Sale Deed dated 16.2.1999 (Ext.P-2) whereby 5 biswas of land was sold for a sum of Rs.1,70,000/-. In terms of the said sale deed, market value of the acquired land comes to Rs.35,000/- per biswa. Importantly, he has deposed that not only he has seen the acquired land belonging to the claimants, but both the lands are 7 adjoining to each other. He has deposed that the sale transaction reflected the true market value of the land at the time of sale. Importantly, he has been cross examined but, however, there is nothing which would even cast a doubt about the truthfulness of his statement or the genuineness of the sale transaction. The claimant tendered in evidence Sale Deeds Ext.P- 3 & Ext.P-4. They cannot be made basis for determining the instant value for the very same reason for which the sale deeds Ext.R-1 & Ext.R-2 cannot be looked into. Thus, from the material on record, it is evident that the claimants have been sufficiently able to prove, by leading clear, cogent and reliable evidence and material that the market value of the acquired land is more than what stands awarded by the Collector in terms of his award dated 22.8.2000. As already noticed hereinabove, the Court below has not assigned any reason for not considering the Sale Deeds Ext.P1 & Ext.P-2. The acquisition proceedings commenced in February, 1999. Sale Deed Ext.P1 is of December, 1998. Even though same may not be made basis for determining the market value of the acquired land but however, it evidently shows the trend of the prevailing prices in the area in question. The same pertains to the very same village Mehli. Sale Deed Ext.P2 is dated 16.2.1999 and is closer to the period of initiation of the acquisition proceedings. Hence, the same can be made basis for 8 determining the market value of the acquired land. In terms of Ext.P-2 the land was sold @ Rs.35,000/- per biswa. Considering that the acquired land was acquired for the purpose of setting up of Pump House and there is no material to show that any developmental activity was required to be carried out for developing the land. No deduction is required to be carried out for the same. While passing the award, the Collector himself has noticed the market value of the land in the area as under:- “Mauja Category of land Rate per bigha Per biswa Mehli 1. Bakhal Awal Rs.7,13,415.60 Rs.35,670.00 (Tehsil 2. Bakhal Doyam Rs.5,29,545.60 Rs.26,477.00 Shimla) 3. Gair Majrua Rs.1,83,870.00 Rs. 9,193.00” The claimant’s land was considered to be as Gair Majrua (uncultivated). Perhaps this was so done on the basis of the revenue record available with the Collector but however, there is positive evidence on record, in the statement of PW-1, that her land was flat and was under cultivation. This statement undisputedly goes unrebutted. From the documentary material on record, this statement also could not be refuted. Hence, I see no reason as to why the claimant be not awarded compensation @ Rs.35,000/- per biswa, for 9 biswas of land acquired by the State. As such, the impugned award is modified. The claimant is held entitled to compensation @Rs.35,000/- per biswa. 9 The other statutory compensation and interest shall be payable to the claimant from the date of the publication of the notice in the H.P. Rajpatra. The claimant shall be entitled to compensation in accordance with the ratio of law laid down by the Apex Court in Sunder vs. Union of India (2001(7)SCC 211). For the aforesaid reasons, the impugned award is modified and the present appeal is allowed. (Sanjay Karol), Judge. June 25, 2009. (rana)