IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No. 430 of 2004 with RFA Nos. 431, 432, 433, 434 & 436 of 2004. Date of Decision : December 16, 2008 RFA No. 430 of 2004 Union of India …Appellant. Versus: Damodar Dass & others …Respondents. RFA No. 431 of 2004 Union of India …Appellant. Versus: Devi Ram & others …Respondents. RFA No. 432 of 2004 Union of India …Appellant. Versus: Dalip Singh & others …Respondents. RFA No. 433 of 2004 Union of India …Appellant. Versus: Hukam Ram & others …Respondents. RFA No. 434 of 2004 Union of India …Appellant. Versus: Ajit Singh & others …Respondents. RFA No. 436 of 2004 Union of India …Appellant. Versus: Begam & others …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 For the appellants : Mr. Sandeep Sharma, Asstt. Solicitor General of India. For respondent No.1 : Mr. Brahma Nand Sharma, Advocate For respondents 2 & 3: Mr. R. K. Bawa, A. G. with Mr. Vivek Thakur, Addl. A. G. SANJAY KAROL, JUDGE (Oral). The present appeals arise out of the impugned Award dated 22.2.2003 passed by the District Judge, Kinnaur Civil Division at Rampur Bushahr, H.P. The land reference petitions in question were consolidated by the District Judge in terms of orders dated 22.2.2003, as such, the evidence recorded in Land Ref. Petition No. 40 of 1999 was considered in all the cases. For defence purposes, the land comprising approximately 1259 bighas was acquired by the State of Himachal Pradesh for and on behalf of the Secretary Defence, Govt. of India. The acquisition proceedings commenced with the issuance of the Notification dated 16.11.1994 under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’) which was published in the H.P. Rajpatra on 21.9.1995. The Award No. 1/1998 dated 19.3.1998 was passed by the Collector, Land Acquisition, awarding different categories of rates for different classifications of land. The details are as under:- Sr. No. Classification of land Area Rate per biswa Rate per Bigha 1. Bathal Doem 37-7 5075-00 1,01,500 3 2. Gair Mumkin (Awadi) 8-14 5075-00 1,01,500 3. Bathal Soem 711-11 2625-00 52,500 4. Bathal Chaharam 460-10 1575-00 31,500 5. Banjar Kadim 25-5 1575-00 31,500 6. Gair Mumkin 16-9 1575-00 31,500 Compensation with regard to the trees and the houses/superstructures was also separately awarded. Aggrieved by the same, the claimants filed various land reference petitions under Section 18 of the Act. The present case pertains to the claimants whose land was classified as Bathal Soem for which Rs.52,500/- per bigha was determined as market value of the acquired land. The details of the land involved in the present appeals situate in village Averi, Phati Nirmand Kothi Himari, Tehsil Nirmand, Distt. Kullu, H.P. is as under:- Sr. No. Land Ref. Petn. No. Khasra Nos. Total land in bighas 1. 40 of 1999 5480/5399 22-11 2. 33 of 1999 6133, 6134 4-0 3. 36 of 1999 5481/5399 22-11 4. 37 of 1999 5369, 5341, 5364, 5389, 5366, 5397 22, 3.7, 4.16, 6.5, 6.10, 4.14 5. 51 of 1999 6187/5478 & 5482/5399 19-15 & 2-15 6. 56 of 1999 5409 35-16 4 The details of the land reference petitions, RFA Nos., and the name of the parties is as under:- Sr. No. Land Ref. Petition No. Title of petition 1. 40/1999 (RFA No.430/2004) Damodar Dass vs. LAC & Ors. 2. 33/1999 (RFA No.431/2004) Devi Ram vs. LAC & Ors. 3. 36/1999 (RFA No.432/2004) Dalip Singh vs. LAC & Ors. 4. 37/1999 (RFA No.433/2004) Hukam Ram vs. LAC & Ors. 5. 51/1999 (RFA No.434/2004) Ajit Singh vs. LAC & Ors. 6. 56/1999 (RFA No.436/2004) Begum vs. LAC & Ors. Based on the pleadings of the parties, following issues were framed by the District Judge:- 1. Whether the land under acquisition was irrigated? If so, with what effect? ……OPP 2. Whether the Collector Land Acquisition has inadequately assessed the market value of the land under acquisition? …….OPP 3. Whether the petitioner(s) are entitled to enhancement of compensation of their land? ….OPP Adequate opportunity to adduce evidence was afforded to the parties. Based on the material on record (oral and documentary), the Court below enhanced the market value of the acquired land from Rs.52,500/- per bigha to Rs.60,000/- per 5 bigha. The same was done on the basis of the exemplar Sale Deed Ext.PW-2/A proved on record by the claimants. No compensation was awarded for the superstructures alleged to have been situated on the acquired land in question. Solatium and other statutory benefits were awarded in accordance with the provisions of the statute. The beneficiary Union of India has filed the present appeals. No cross-objections have been filed by the claimants. I have heard the learned counsel for the parties and also perused the record. The challenge to the impugned Award is on the ground that the Court below has determined the market value on the basis of solitary sale instance which was with respect to a small parcel of land. According to the learned Assistant Solicitor General of India, the Court below erred in basing its decision on the same particularly when otherwise there was contemporaneous material on record to justify the award passed by the Collector. Per contra, Shri Brahma Nand Sharma, learned counsel for the claimants has defended the award for the reasons set out therein. According to him, there cannot be a straight jacket formula and Sale Deed pertaining to a solitary sale instance can also be considered for determining the market value of the acquired land. The fact that the claimants land was acquired in terms of the Notification issued under the provisions of the Act is not in dispute. The extent, the location and the entitlement of the 6 claimants is also not in dispute. It is equally true that even though large chunk of land was acquired for setting up of defence establishment but, however, individual share holding of each claimant is not very big and substantial. The increase of the amount of the market value is also not very high and is just about 10% from what was awarded by the Collector, Land Acquisition. In order to prove its case, the claimants examined Shri Damodar Dass (PW-1), Shri Gopal Dass (PW-1A), Numberdar of Phati Nirmand, Shri Prabhudayal (PW-2) who sold his land in terms of Sale Deed Ext.PW-2/A and Shri Mela Ram (PW-3). These witnesses proved on record Sale Deed Ext.PW-2/A dated 14.9.1993 in terms of which 2 biswas of land in village Averi was sold for a sum of Rs.6000/- (Rs. 3 lakh per bigha). In rebuttal, the respondents examined Shri Shyam Chand (RW-1,) patwari of the Patwar Circle Nirmand, Shri Naresh Thakur (RW-1A) and Shri Chain Ram (RW-2). Village Averi is at a distance of 6 kms. from Rampur stands proved by PW-1A. That the acquired land was put to agricultural use and the claimants used to sow maize and wheat stands proved by PW-1A, PW-3 & PW-4. These witnesses have deposed that the crop sown on the acquired land was sold at Rampur, which in fact is closer from the acquired land and were having an annual income of Rs.one lac per bigha. According to the claimants, the market value of the acquired land was approximately 2½ lacs per bigha. With the acquisition of the land, 7 as stands proved by them, there has been mass dislocation of population which has not only effected their personal life but also their businesses. The acquired land was well connected by road and having all modern facilities, such as, telephone, road, electricity, water, school and market also stands proved by PW-1. Judicial notice can be taken of the fact that Rampur, Tehsil Headqurters, is a fast going township. In and around Rampur, many Mega Power Projects have already been established and are in the process of being commissioned. The acquired land is just at a distance of 6 kms. from Rampur. PW- 1 has also proved that the new power project by the name of Rampur Hydle Power Project is being constructed just at a distance of 4 kms. from Averi towards Duttnagar, which is near Rampur. Thus, the potentiality of the acquired land to be put to use other than agriculture cannot be ruled out and is in fact substantial. The Collector Land Acquisition, as stands proved by RW-2, passed the Award on the basis of the annual average market price (Ext.RW-2/A) of village Nirmand, according to which the market price of the land at Nirmand for different categories of land was ; Ropa Awal = Rs.31,464/- per bigha, Ropa Doem = Rs.27,268/- per bigha, Ropa Soem = Rs.17,200/- per bigha, Bakhal Awal = Rs.18,458.88 per bigha. 8 The same was considered as according to RW-2, five yearly average market price as also the annual average market price of village Averi was very less and could not be construed to be determinative of the true market value of the acquired land. The locational situation of village Averi from Rampur does not appear to be in dispute. RW-2 has admitted that Nirmand is just at a distance of 12 kms. from village Averi. If this was so then why the average price of village Rampur was not taken into account by the Collector, is not evident from the record. The District Judge has held that the acquired land was not irrigated and even PW-1 has admitted that the acquired land was sandy. These findings are not in dispute. Be that as it may be the fact of the matter is that the claimants have proved through oral testimony that the market value of the land in Rampur is in the vicinity of Rs.4 lacs to 5 lacs per bigha. If this is so then the average market price of village Rampur ought to have been considered by the Collector while determining the market value of the acquired land. Rampur was in fact at a shorter distance from Averi than from Nirmand. It is not that the lands at Nirmand and Averi are of same quality or that the land at Rampur is of a different quality. The position of law is evidently clear and the market value of the basic valuation register maintained for the purposes of the collection of the stamps duty cannot be relied upon while determining the market value of the acquired land. Krishi Utpadan Mandi Samiti, 9 Sahaswan vs. Bipin Kumar {2004(2) SCC 283}. The State did not lead any evidence except for proving on record Ext.RW-2/A which was the annual average market price of the land situated in village Nirmand. On the contrary, the claimants have proved on record Sale Deed Ext.PW-2/A, which was sold by Shri Prabhudayal (PW- 2). The genuineness of the sale transactions is not in dispute which is evident from the line of cross-examination carried out by the present appellants. Therefore, the same has been rightly considered by the Court below for determining the market value of the acquired land. From the statement of PW-2, it is evident that the land covered by the exemplar Sale Deed was not of good quality and did not have any locational advantage inasmuch as it was situated near a Nallah of village Averi. The sale transaction pertains to the very same village and is proximate to the time of the acquisition. In my view, no deduction is required to be carried out for the various reasons discussed hereinabove. No doubt, the exemplar sale deed pertains to only 2 biswas of land but, however, the fact of the matter is that the individual share holding of each land holder is also not substantial. There are two methods for assessing the market value of the acquired land, the first one is method of annual net income multiplied by appropriate capitalization of the same year and the second method is comparable sale transaction, but in the instant, the parties have contended and pleaded that the market value of 10 the acquired land be assessed on the basis of the comparable market values. It is settled principle of law that the market value of the acquired land can be assessed on the basis of bonafide sale transactions on comparable basis. However, if there has been no sufficient number of bonafide sale transactions in the locality then the sale which has taken place in the adjoining area can be taken into consideration for determining the market value of the acquired land. It is now settled principle of law that the market value of the acquired land has to be determined on the crucial date of notification under Section 4 of the Act and only the genuineness of the sale transaction has to be taken into account and the market value has to be assessed on the basis of comparable sale transaction which has taken place in the area concerned and proximity from time angle and proximity from situation angle has to be identified and every case must be dealt with its own and valuation of these factors would depend upon the facts and circumstances of each case and there cannot be any hard and fast or rigid rules. Common sense is the best and the most reliable guide. The Apex Court in Chimanlal Hargovinddas vs. Special Land Acquisition Officer {AIR 1988 SC 1652}, R. L. Jain (Dead) by LRs vs. DDA and others {2004(4) SCC 79} and Ravinder Narain and another v. Union of India {2003(4) SCC 481}, it has been held that the rate fixed for smaller plots in the same vicinity 11 can be the basis for fixation of rate for large area acquired. In the present case, there is no dispute that the said sale transaction is of the same village. It is situated in the same village having same advantage and within the reasonable time of the date of Notification issued under Section 4 of the Act. In my view, the same was rightly considered by the Court below. It has come on record from the statement of PW-1 that village Nirmand is linked with Rampur via Averi. It has also come on record that as part of the package for acquisition of the land the State has earmarked area to rehabilitate the uprooted population. Undoubtedly this fact by itself would in no manner mean that the claimants should not be entitled to the fair market value of the acquired land, which has to be that of the willing seller and a purchaser at the time of acquisition of the land in question. In any event, there is nothing on record to prove that the claimants were also allotted any plots. I see no error in the impugned Award passed by the Court below. The claimants have been awarded compensation which is just, fair and reasonable. The entire material has been considered and appreciated correctly. I see no reason to interfere in the same. The appeals are accordingly dismissed (Sanjay Karol), Judge. December 16, 2008. (rana)