IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No.197 of 2004 Date of Decision : November 20, 2008. LAC and another …Appellants. Versus: Hari Ram …Respondent. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellants: Mr. Vivek Thakur, Addl. A.G. For the respondent. Mr. Sanjeev Kuthiala, Advocate SANJAY KAROL, JUDGE (Oral). The present appeal arises out of a Award dated 6.10.2003, passed by the District Judge, Kullu, H. P. in Land Reference Petition No. 105/2002 titled as Hari Ram vs. LAC & another. For the public purpose, namely, construction of National Highway-21, Bye Pass road, Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’) dated 29.4.1993 (lastly published on 19.6.1993) was issued by the State Government seeking to acquire the claimants land situate in Phati Kharahal, Kothi Kais, Tehsil Manali, District Kullu, H. P. The acquisition proceedings concluded with the passing of the Collector’s Award No.9/1995 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 dated 1.9.1995, whereby the market value with regard to the different classifications of the land was fixed as under:- Sr. Kind of land Area Per bigha No. Value 1. Bagicha Bathal 7-18-19 36060.00 2. Bagicha Dom 14-8-4 24040.00 3. Bathal Som 24-18-4 12020.00 4. Gair Mumkin 1-11-0 1336.00 Aggrieved by the same, the claimants filed a Land Reference Petition under Section 18 of the Act seeking enhancement of the compensation awarded by the Collector. The Court below famed the following issues :- 1) Whether the market price of the land of the petitioner acquired by the respondent has not been properly assessed, if so, whether the petitioner is entitled to enhanced compensation as alleged? …….OPP 2) Whether the value of the four apple trees, 11 plum trees, three khumanis, standing on the acquired land has not been properly assessed, if so, what is its value? ……….OPP 3) Whether the petitioner has constructed a water storage tank on the acquired land, if so its effect? …………OPP 4) Whether the petitioner is entitled to solatium at the rate of 30% and interest under Section 23(1-A) and Section 28 of the Act, as alleged? ………..OPP 5) Relief. Based on the evidence led by the parties (oral and documentary), the market value of the claimants land was enhanced to Rs. 3 lacs per bigha. The basis for enhancement of 3 the compensation was the Collector’s Award No.9/1994 dated 26.10.1994 (Ext.PD); the Award passed by the District Judge in Reference Petition No.96/98 dated 18.9.2000 (Ext.PC). The present appeal has been filed by the State. No appeal or cross-objections have been filed by the claimants. I have heard the learned counsel for the parties and also perused the record. In order to prove their case, the claimants examined S/Shri Anil Kumar (PW-1) & Ishwar Dass (PW-2). Sale Deeds Ext.PW-2/A & Ext.PW-2/B were proved by the claimants and the Awards Ext.PA, Ext.PC & Ext.PD were also tendered in evidence. To rebut the claimants evidence, respondents examined Shri Kuldeep Singh Patwari (RW-1) and proved on record the annual average price maintained by the Revenue Department Ext.RW-1/A for the period August 19.9.1992 to 18.9.1993. Also Sale Deeds and copies of jamabandis Ext.RA to Ext.RH were tendered in evidence. Sale Deeds Ext.RA, Ext.RC, Ext.RE & Ext.RG produced by the State have been perused and, in my view, they have rightly not been relied upon by the Court below. Annual average price Ext.RW-1/A can also not be considered as the purpose of maintaining the same is different i.e. collection of stamp duty under the Registration Act, as there is nothing on record to prove the similarity of quality and potential of the acquired land with that of the exemplar sale land. As such, 4 these documents cannot be considered for determining the market value of the acquired land. There is yet another reason as to why the exemplar sale deeds cannot be considered. There is other contemporaneous material on record, in the shape of the Collector’s Award wherein the market value for the land acquired in the same Phatti and for the very same public purpose is much higher than the sale price of the said exemplar sale deeds. The Award Ext.PD dated 26.10.1994 has been passed by the Collector under the Land Acquisition Act, 1894. Perusal of the same would show that land in Village Phatti Kharahal, Tehsil and Distt. Kullu, was acquired for the purpose of construction of “National Highway-21 Kullu Bye Pass”. After considering the material on record, the Collector himself uniformly determined the market value of the acquired land at Rs. 3 lacs per bigha. Award Ext.PC dated 18.9.2000 passed by the District Judge, Kullu (in 29 Reference Petitions) also pertains to the very same Phati and public purpose. Relying upon the aforesaid Award Ext.PD, the District Judge also awarded compensation at Rs.3 lacs per bigha. Both PW-1 & PW-2 have deposed with regard to the similarity and proximity of the acquired land with that of the land covered under Award Ext.PC. In fact while passing the Award Ext.PD, the Collector himself has observed that :- 5 As per one year average sale price of the land value comes Rs.73,602 per bigha for Bagicha Bathal, Rs.31,796.00 per bigha for Bathal Abbal and Rs.10,599.00 per bigha for Bathal Som and Gair Mumkin kind of land. The afore said average value is the value of transactions taking place in the entire Phati Kharahal which extends up to about four kilometers from Kullu Town. The land under acquisition in this case is located near Kullu Town. Though it is situated across the river Beas. The land is separated by two bridges from Akhara Bazar, Kullu, which is the main shopping and business centre of the Town. Thus located, the land under acquisition has very high commercial value, since there is great potential in putting the land for construction of hotels, restaurants, shopping complexes and residential houses etc. Hence to assess the market value of the land under acquisition an average value of the land as discussed above is not suggestive of the market value of the land because of its commercial value. The average value of Bagicha Bathal is Rs.73,602/- per bigha. Since the land under acquisition has high commercial value as discussed above, the market value of the land would be at least four times more than the above mentioned average value. Thus multiplying by four, value comes to Rupees 2,94,408.00 per bigha. Considering the potentiality future possibility and aforesaid facts and circumstances a flat rate of Rs.3.00 lacs per bigha is hereby awarded in view of the fact that the whole land despite variation in classification as per revenue record has equal commercial value, since 6 the land is hardly located at a distance of about fifty metres from Akhara Bazar, Kullu. While passing the Award (Ext.PA), the same Collector has, however, not considered the aforesaid facts and without any basis determined the market value of the acquired land. He was dealing with almost the same quality of land situated in the same Phatti and acquired for the same public purpose. The locational advantage of the entire land is same and could be put to commercial use. As per the ratio of law laid down by the Apex Court in Karan Singh and another v. Union of India (1997 (8) SCC 186), the judgments of the Courts in land acquisition cases or the awards given by the Land Acquisition Officers can be relied upon as piece of evidence for determining the market value of the land, if the same are admitted in evidence and there is evidence to prove the similarity of land and other attending circumstances. Shri Anil Kumar (PW-1) has categorically deposed that the acquired land is adjoining to the land acquired for the construction of the “National Highway-21 Kullu Bye Pass” and the land of other claimant Shri Dot Ram is also close by. The acquired land is just opposite to the Akhara Bazar. The land is extremely suitable for setting-up of a Hotel due to its proximity with the National Highway under construction as also the main Kullu Bazar. From Tourism point of view it has great potential. 7 There is no effective and serious cross-examination of this witness on this point. Since the potentiality, the use, the location, its proximity with the main Kullu bazaar and the National Highway stands proved, I see no reason as to why the claimants should also not be awarded compensation at the same rates at which the Collector had assessed the market value in terms of Award Ext.PD. Importantly, the Land Acquisition Officer in both the cases is the same. The matter needs to be examined from another angle. PW-1 & PW-2 have proved Sale Deeds Ext.PW-2/A & Ext.PW-2/B. They pertain to the same Phati and period of acquisition. In terms of the said exemplar sale deeds, the value of the land comes to Rs.12 lacs per bigha. The Court below has not considered them for the reason that the same pertain to small parcels of land. The Apex Court in Rishi Pal Singh & Others vs. Meerut Development Authority & another {2006(3) SCC 205} has held that exemplar sale deeds pertaining to even small parcels of land can be considered subject to certain deductions and fulfillment of other conditions. The Apex Court in Tharkarsibhai Devjibhai & Others vs. Executive Engineer & another {AIR 2001 SC 2424} also held that where large chunk of land is acquired then share of each individual share holder is to be considered. In the instant case, individual share holding of each individual in the acquired land is not large to constitute a big chunk of land. Even if the market value of the acquired 8 land, in terms of the exemplar sale deeds is to be determined by making deduction of 50%, then the amount arrived at would be double the amount that stands awarded by the Court below. Therefore, there is no error in the determination of the market value of the acquired land by the Court below. Since the claimants have not filed any appeal/cross objections, hence they are deemed to have accepted the impugned Award. The Court below has determined the market value on the basis of Awards Ext. PC & Ext. PD. The Award has been passed after taking into consideration the entire material. I see no reason to interfere with the same. The appeal is accordingly dismissed. However, it is clarified that the claimants shall be entitled to all statutory benefits including interest, solatium in terms of the judgment of the Apex Court in Sunder vs. Union of India (2001(7) SCC 211). The interest shall be payable from the date of the publication of the Notification issued under Section 4 of the Act. ( Sanjay Karol ), Judge. November 20, 2008. (rana)