IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No. 285 of 2007 along with RFA Nos. 286 & 287 of 2007 Date of Decision : 1.4.2008 ______________________________________________ RFA No. 285 of 2007 LAC and others ……… Appellants. Versus: Hari Dass ……. . Respondent. ___________________________________________________ RFA No. 286 of 2007 LAC and others …….. Appellants. Versus: Naresh Chand and others ……… Respondents. ___________________________________________________ RFA No. 287 of 2007 LAC and others …….. Appellants. Versus: Mohinder Singh and others ……. Respondents. ___________________________________________________ Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? Yes. For the appellants: Mr. Vivek Thakur, Addl. A. G. with Ms. Shubh Mahajan, Dy. A. G. For the respondents. Mr. Rupinder Singh, Advocate ___________________________________________________ Sanjay Karol, J. (Oral). The present appeals arise out of the common award dated 2.7.2007, passed by the Additional District Judge, Sirmaur District at Nahan (H.P.), therefore, they are being considered 2 and disposed of by a common judgment. For the public purpose, namely, construction of Yashwant Nagar-Darho-Deverya-Sarahan road, the appellant- State issued a Notification u/s 4 of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’) dated 16.6.1998 and published in the H.P. Rajpatra on 4.7.1988. In terms of award No. 3/2001 dated 1.5.2001, the Collector awarded the compensation for different categories/classification of the acquired land as under:- 1. Kuhal Salan Rs.9,346.25 2. Obar Khadi Rs.5,507.75 3. Banjar Jadeed Rs.1,420.63 4. Banjar Kadeem Rs. 672.93 5. Ghasni and Nakabil Rs. 500.00 Aggrieved by the same, the claimants filed different petitions u/s 18 of the Act, which were registered as under: Sr.No. Land Ref. Ptn. No. Name of party 1. 19-N/4 of 2001 Hari Dass v. LAC & Ors. 2. 20-N/4 of 2001 Naresh Chand & Ors. v. LAC & Ors. 3. 27-N/4 of 2001 Mohinder Singh & Ors. v. LAC & Ors. The matters were heard together and common evidence was led by the parties. Considering the material on record, the court below enhanced the compensation payable to the petitioners and 3 uniformly awarded Rs.1,50,000/- per bigha, regardless of the classification of the entire land. Statutory interest and solatium, in accordance with law, was also awarded in term of the common award date 2.7.2007, which is now a subject-matter of challenge in the present appeal. The claimants have not preferred any appeal and have thus accepted the impugned award. The appellant-State, however, has filed the present appeal on the ground that the amount awarded by the Court below is on the higher side and the evidence led by the respondents has not been appreciated in its correct perspective. I have heard the learned counsel for the parties and also gone through the record. In support of their claim, the claimants produced three witnesses; S/Shri Hari Dass (PW-1), Joginder Singh (PW- 2), Attar Singh (PW-3) and proved on record the Sale Deeds dated 3.2.1995 (Ext.P-1), 19.7.1996 (Ext.P-2) and 31.3.1998 (Ex.P-3). The Award dated 31.12.2002 (Ext.PX) was also tendered in evidence. No oral evidence was led by the State but however, certified copies of the Sale Deed dated 25.11.1997 (Ext.R-1), were placed on record. In terms of Sale Deed Ext.P-1, six biswas of land situate in village Maryog, Tehsil Pachhad, Distt. Sirmaur, was sold for Rs.60,000/-. Thus, this land was sold at Rs.10,000/- per 4 biswa; vide Sale Deed Ext.P-2, two biswas of land was sold for a consideration of Rs.30,000/- in village Cheola Bakang, Tehsil Pachhad, Distt. Sirmaur H.P. Vide Sale Deed Ext.P-3, two biswas of land was sold for Rs.15,000/- in village Maryog, Tehsil Pachhad, Distt. Sirmaur, H.P. Vide Sale Deed Ext.R-1, 18 bighas 14 biswas of land was sold in village Kotla Barog, Tehsil Pachhad, Distt. Sirmaur, H.P. at Rs.14,000/-. Ext.PX is the award dated 31.12.2002 passed in Land Reference Petition No. 1-N/4 of 2000 by the Addl. District Judge, Sirmaur District at Nahan, H.P. pertaining to Notification dated 22.5.1996, whereby land for construction of another road was acquired. According to this award, a sum of Rs.1,50,000/- per bigha for all categories of land was awarded by the Addl. District Judge. It is not disputed before this Court that the said award had attained finality. This Court in case titled Land Acquisition Collector vs. Sukhdev Singh, (AIR 1995 HP 150) has held in para 15 as under:- “We find that in M/s Printers House Pvt. Ltd. v. Mst. Saiyadan (deceased) by L.Rs., AIR 1994 SC 1160 (supra), approving ‘comparable Sales Method of valuation of land’ as most favoured method, the learned Judges of Supreme Court have reiterated that :- “…………….the comparable sale must, firstly be genuine, secondly it must have taken place at a time proximate to the date of publication of the preliminary notification under Sec. 4(1) of the Act, thirdly the land sold under 5 the sale must be similar to the acquired land, and fourthly the land sold under the sale must be in the vicinity of the acquired land. It has, therefore, to be noted that the location, size, shape, tenure, user or potentiality of land under comparable sale, if do not compare favourably with the acquired land, price fetched in comparable sale cannot furnish the ‘price basis’ for determining the market value of the acquired land. However, if any differing feature or factor in a land covered by comparable sale admits of adjustment in terms of money, depending on whether it is plus factor or minus factor, the market value of the acquired land is determined either by increasing its price or decreasing its price vis-a-vis the price fetched for land under comparable sale. What applies to comparable sale, equally applies to comparable award, if such award is relied upon as that furnishing a price basis for determination of the market value of the land, cannot be disputed.” The market value means the price that a willing purchaser would pay to the willing seller for a property having due regards to its existing condition, with all its existing advantages and its potential possibilities when laid out in the most advantageous manner excluding any advantage due to the carrying out of the public purpose for which property is compulsorily acquired. The Apex Court in Chimanlal Hargovinddas Vs. Special Land Acquisition Officer, Poona and another, reported in AIR 1988 SC 1652, referred the following factors for determining 6 the market value:- ”4. The following factors must be etched on the mental screen: (1) A reference under Section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition Officer in his Award unless the same material is produced and proved before the Court. (2) So also the Award of the Land Acquisition Officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the court hearing the Reference. It is merely an offer made by the Court unless produced and proved before it. It is not the function of the court to sit in appeal against the Award approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an appellate Court. (3) The Court has to treat the reference as an original proceeding before it determine the market value afresh on the basis of the material produced before it. (4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose. 7 (5) The market value of land under acquisition has to be determined as on the crucial date of publication of the notification under S.4 of the Land Acquisition Act (dates of Notifications under Ss. 6 and 9 are irrelevant). (6) The determination has to be made standing on the date line of valuation (date of publication of notification under S.4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price. (7) In doing so by the instance method, the Court has to co-relate the market value reflected in the most comparable instance which provides the index of market value. (8) Only genuine instances have to be taken into account. (Sometimes instances are rigged up in anticipation of Acquisition of land.). (9) Even post-notification instances can be taken into account (1) if they are very proximate, (2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects. (10) The most comparable instances out of the genuine instances have to be identified on the following considerations: (i) proximity from time angle (ii) proximity from situation angle 8 (11) Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deducted by making suitable adjustments for the plus and minus factors vis-à-vis land under acquisition by placing the two in juxtaposition. (12) A balance-sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchaser would do. (13) The market value of the land under acquisition has thereafter to be deducted by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors.” Keeping in view the aforesaid principles, the material on record needs to be examined. Through the statements of PW-1, PW-2 & PW-3, it has come on record that the boundaries of Village Chewala Bakanag and Village Maryog are adjoining and the nature and potentiality of the land in both the villages is same and similar. It has also come on record that the acquired land is adjacent to the State Highway and the claimants and the villagers are enjoying the facilities of School, Post Office and Dispensary. The acquired land is in close proximity of the Horticulture and Forestry University, Nauni, Distt. Solan, H.P. The claimants land was used by them for agricultural purpose and they were having regular 9 income there from. The Sale Deeds Ext.P-1 and P-3 pertain to village Maryog and Ext.P-2 pertains to village Chewala Bakanag. In my view, the Court below has correctly not considered the same for determining the market value of the land as the same pertains to small parcel of land and in any event there is an award Ext.PX on record which can be made basis for determining the sale price. Sale Deed Ext.R-1 cannot be considered at all for the simple reason that no evidence has been led to show that the sold land and the acquired land have similarity in nature and potentiality. Also there is nothing on record to show that Village Kotla Barog is adjoining to village Chewala Bakanag or village Maryog. Additionally, Ext.R-1 is with respect to a very large chunk of land and there may be various factors for fixing the consideration as shown therein. I have perused the award Ext.PX which has attained finality. The witnesses have deposed that the acquired land and the land acquired vide award Ext.PX has the same potentiality, use and nature and are also in close proximity. The public purpose in both the cases is construction of roads. It is proximate in time to the date of publication of the Notification. It has come on record that the claimants were having regular income from the acquired land. Entire land has been utilized for the construction of the road. In my view, the Court below has correctly relied upon award Ext.PX to determine the fair market 10 value of the acquired land @Rs.1,50,000/- per bigha irrespective of its classification and category. The Court below has correctly awarded the compensation, solatium and interest thereupon. I see no error or perversity in the same. The appeals are accordingly dismissed. Learned counsel for the appellants has stated at the bar that all the drafts are lying ready and the amount shall be deposited in the Registry of this Court within one week. Allowed. Pending applications, if any, also stand disposed of. ( Sanjay Karol ), Judge. April 1, 2008 (rana)