IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RFA Nos.289 of 2001 alongwith RFA Nos.146, 290,292,294 and 295 of 2001 Judgment Reserved on: 17.11.2009. Date of decision: 07.01.2010 1. RFA No.289 of 2001. Collector Land Acquisition, HPPWD, Mandi …Appellant Versus Ram Parkash …Respondent 2. RFA No.146 of 2001. Collector Land Acquisition, HPPWD, Mandi …Appellant Versus Devinder Nath …Respondent 3. RFA No.290 of 2001. Collector Land Acquisition, HPPWD, Mandi …Appellant Versus Sewak Ram …Respondent 4. RFA No.292 of 2001. Collector Land Acquisition, HPPWD, Mandi …Appellant Versus Tara Chand …Respondent 5. RFA No.294 of 2001. Collector Land Acquisition, HPPWD, Mandi …Appellant Versus Yadu Ram …Respondent 6. RFA No.295 of 2001. Collector Land Acquisition, HPPWD, Mandi …Appellant Versus Jagat Ram ….Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Appellant(s):Mr.R.K. Bawa, Advocate General with Ms.Ruma Kaushik, Additional Advocate General. For the Respondents: Mr.Ashwani K.Sharm, Advocate. Dev Darshan Sud,J. These appeals arise out of the judgment passed in 18 Reference Petitions disposed of by the learned 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 Reference Court by judgment dated 4th September, 1999. All the Reference Petitions were consolidated and tried together as they arise out of the same Notification issued on 26.12.1979 under Section 4 of the Land Acquisition Act, 1894, (hereinafter referred to as the `Act’) and the purpose of acquisition was also same i.e. for widening National Highway-21. It is also undisputed that the land of all the claimants-respondents is situated in Mohal Nagwain. The provisions of Sections 6 and 7 of the Act were complied with and thereafter the Land Acquisition Collector passed a consolidated award on 25.3.1983 assessing the compensation of the acquired land on the basis of its agricultural quality. The particulars of the land of the respondents in these appeals are:- Sr. No. Particulars of the reference petitions and name of the parties Particulars of the acquired property. Kh.No. Area in Kind 1. Reference case No.115/89. Ram Parkash Vs. Collector. 929/107 930/108/1 943/107/1 0-0-14 0-0-5 0-0-15 Banjar Jadid G.M.Abadi -do- 2. Reference case No.116/89. Devinder Nath Vs. Collector 606 938/607 0-2-10 0-0-0 -do- Kalahu Abal 3. Reference case No.124/89. Sewak Ram Vs. Collector. 90/1 91/1 95/1 95/2 1098/544 545 0-2-8 0-0-14 0-0-9 0-5-3 0-1-15 0-3-6 G.M.Makan Abadi -do- G.M.Khokha Kalahu Abal G.M. Abadi -do- 4. Reference case No.127/89. Tara Chand Vs. Collector. 648/1 649/1 0-2-8 0-0-6 G.M. Abadi -do- 3 5. Reference case No.133/89. Yadu Ram Vs. Collector. 1049/1023/ 692/1 1049/1023/ 692/2 0-2-9 0-0-4 Bagicha Kalahu Faldar -do- 6. Reference case No.139/89. Jagat Ram Vs. Collector. 252/1 252/2 796/1 0-0-17 0-5-8 1-4-4 G.M. Abadi Dhani Abal Bagicha Barani Faldar. Before the judgment dated 4.9.1999 of the learned Reference Court, out of which these appeals arise, vide judgment dated 2.12.1991, 27 Reference Petitions were disposed of by the Reference Court assessing the value of the acquired land under Section 4 of the Act at Rs.58,000/- per Bigha and enhancement was made for the value of trees etc. standing on the acquired land. The award made by the Collector, so far as the standing structure on the land etc. was concerned, was not interfered with. The State appealed against the judgment and the cases were remanded for disposal afresh. Parties were given opportunity to adduce additional evidence with reference to their respective claims. The claimant(s)-respondent(s) claimed Rs.10,000/- per biswa as market value of the land on the date when the Notification under Section 4 of the Act was issued. The possession of the land was taken by the Department in the year 1979 and the respodent(s)- claimant(s) claimed compensation for loss of earnings damage to crops etc. On the settled issues with respect 4 to the question as to the fair market value of the land, the learned Reference Court awarded a sum of Rs.58,000/- per Bigha. In order to reach this conclusion, the learned Reference Court considered the evidence led by the parties which consisted of sale deed Ex.P-1, which was proved by Devi Singh, PW-1, who stated that he had sold 3 biswas of land for Rs.8,000/- and received Rs.10,000/- separately as value of the structure. The Court holds that this deed cannot be used for the purposes of assessing the true value of the land. After remand, Ex.PA, which is the opinion of the Joint Director of Agriculture, was tendered in evidence. According to the opinion of its author Shri D.C. Thakur, Joint Director of Agriculture, the land was suitable for apple, plum and vegetable crop. The Court does not take any assistance from this report rightly holding that neither the original report nor the person who prepared this report had been produced in evidence. In these circumstances, this report was rejected. The Court also observed that the report does not state that the Director/Joint Director had visited the land. There was also no evidence with respect to the per Bigha yield as no evidence with respect to the inputs etc. required had been led. The claimants had relied upon two awards, namely, Ex.P-8 and Ex.PX which had been passed by the same Reference Court with respect to the land situated in Mohal Nagwain, qua the same estate in which the land 5 under acquisition is situated. Ex.P-8 was the copy of the award in Reference Petition No.48 of 1989 by which 5 Reference Petitions were disposed of on 1.1.1991. Notification under Section 4 of the Act was issued on 26.12.1979, which is the same date on which the Notification under this Section has been issued with respect to the Reference Petitions subject matter of this appeal. In this, award the value of land in the year 1979 was assessed at Rs.58,000/- per Bigha irrespective of the nature of the land. Ex.PX is the judgment rendered in the case titled: Sadhu Ram vs. Collector, Reference Petition No.20/1987, decided by the Additional District Judge, Mandi. In that case also the land was acquired for the same purpose i.e. widening of National Highway-21. The land was also situated in Mohal Nagwain. Notification under Section 4 of the Act was issued on 1.12.1981. The market value of the land as assessed in that case was 80,000/- rupees per Bigha. After remand of the case(s) the claimants examined PW-8 Ludermani whose land had been acquired and was the subject matter of the award Ex.PX. He stated on oath that the value of the land was assessed at Rs.4,000/- per Biswa. He stated in clear and no uncertain terms that the land, subject matter of the present appeals, was adjacent to and similar in all respects to his land which was acquired by the State. The learned Court while relying on these judgments, 6 concluded after consideration of the entire evidence on record, that the value of the acquired land is Rs.58,000/- per Bigha. The Court relied upon the judgment in State of J&K vs. Mohammad Mateen Wani and Others, (1998)6 SCC 223, affirming the award of compensation on uniform basis irrespective of the categorization of the land. The learned Court also followed the ratio in Smt.Gulabi and etc. vs. State of H.P., AIR 1998 HP 9, holding that the land having been acquired for a common purpose, the agricultural classification of the land would lose significance and it is the potentiality of the land which has to be considered and uniform rate granted for the acquired land. The Court also followed the law settled in Karan Singh and Others vs. Union of India, (1997)8 SCC 186, which holds:- “8. … … … … … There is no quarrel with the proposition that judgments of courts in land acquisition cases or awards given by the Land Acquisition Officers can be relied upon as a good piece of evidence for determining the market value of the land acquired under certain circumstances. One of the circumstances being that such an award or judgment of the court of law must be a previous judgment. I the case of Pal Singh v. Union Territory of Chandigarh, (1992)4 SCC 400, it was observed thus: (SCC pp.402-03, para 5) 7 “But what cannot be overlooked is, that for a judgment relating to value of land to be admitted in evidence either as an instance or as one from which the market value of the acquired land cold be inferred or deduced, must have been a previous judgment of court and as an instance, it must have been proved by the person relying upon such judgment by adducing evidence aliunde that due regard being given to all attendant facts and circumstances, it could furnish the basis for determining the market value of the acquired land.” Following this decision, we hold that it is only the previous judgment of a court or an award which can be made the basis for assessment of the market value of the acquired land subject to party relying on such judgment to adduce evidence for showing that due regard being given to all attendant facts it could form the basis for fixing the market value of acquired land.” Turning to the evidence of the appellant- respondents which consisted of RW-1 Assistant Engineer, Public Works Department, who stated that the value of the land had been rightly assessed by the Collector, 8 the Court holds that this does not assist the Court in any manner or establishes as a fact the true market value of the acquired land. RW-3 Gulab Singh, Patwari, who was recalled after remand, has also not stated anything. Two sale deeds Ex.R-1 and R-2 were produced which were not relied upon by the learned Court as the same as the vendors and vendees of these deeds have not produced. On this aspect of the case, the learned Court was not right. In Cement Corpn.of India Ltd. vs. Purya and Others, (2004)8 SCC 270, the Supreme Court has held that vendor and vendee is not required to be produced to prove the registered sale deeds. However, the Court also holds:- “33. The submission of Mr G. Chandrashekhar to the effect that the contents of a sale deed should be a conclusive proof as regards the transaction contained therein or the court must raise a mandatory presumption in relation thereto in terms of Section 51-A of the Act cannot be accepted as the court may or may not receive a certified copy of sale deed in evidence. It is discretionary in nature. Only because a document is admissible in evidence, as would appear from the discussions made hereinbefore, the same by itself would not mean that the contents thereof stand proved. Secondly, having regard to the other materials brought on record, the court may not accept the evidence contained in a deed of sale. When 9 materials are brought on record by the parties to the lis, the court is entitled to appreciate the evidence brought on record for determining the issues raised before it and in the said process, may accept one piece of evidence and reject the other. 34. In M.S. Madhusoodhanan v. Kerala Kaumudi (P) Ltd. it is stated: (SCCp. 240, para 119) "119. ... They are rules of evidence which attempt to assist the judicial mind in the matter of weighing the probative or persuasive force of certain facts proved in relation to other facts presumed or inferred (ibid.). Sometimes a discretion is left with the court either to raise a presumption or not as in Section 114 of the Evidence Act. On other occasions, no such discretion is given to the court so that when a certain set of facts is proved, the court is bound to raise the prescribed presumption. But that is all. The presumption may be rebutted." 35. A registered document in terms of Section 51-A of the Act may carry therewith a presumption of genuineness. 10 Such a presumption, therefore, is rebuttable. Raising a presumption, therefore, does not amount to proof; it only shifts the burden of proof against whom the presumption operates for disproving it. Only if the presumption is not rebutted by discharging the burden, the court may act on the basis of such presumption. Even when in terms of the Evidence Act, a provision has been made that the court shall presume a fact, the same by itself would not be irrebuttable or conclusive. The genuineness of a transaction can always fall for adjudication, if any question is raised in this behalf. 36. Similar is the view taken by this Court in V. Narasaiah case wherein this Court held thus: (SCC p. 535, para 14) "14. The words 'may be accepted as evidence' in the section indicate that there is no compulsion on the court to accept such transaction as evidence, but it is open to the court to treat them as evidence. Merely accepting them as evidence does not mean that the court is bound to treat them as reliable evidence. What is sought to be achieved is that the transactions recorded in the documents may be treated as evidence, just like any other 11 evidence, and it is for the court to weigh all the pros and cons to decide whether such transaction can be relied on for understanding the real price of the land concerned.” Merely tendering sale deed(s) in evidence does not meet the requirement of law that is that the State must not only establish that the quality of land sold is same or similar to that of the acquired land, but it also possesses the same advantage or disadvantage or is of better quality than that of the acquired land. In these circumstances, the learned Court below is correct in ignoring the sale deeds and placing reliance on the two awards Ex.PX and P-8 in awarding compensation. The learned Court rightly relies upon the two awards and holds that the value of the land has been correctly assessed in Ex.PX and Ex.P-8. The Court, thereafter, proceeds to award compensation in terms of Section 23, 23(2), 23(1A) of the Act, but at the same time the Court holds that no interest is payable on solatium under Section 23(2) or on additional amount under Section 23(1A). Interest is made payable at the rate of 12% per annum on the solatium and excess amount of market value from the date of publication of the Notification under Section 4 of the Act to the date of making award by the claimant or from the date of taking 12 over possession which ever is earlier. Additional interest at the rate of 9% and 10% is also awarded. Learned Advocate General urges that no interest can be awarded from the date of taking possession. In the present case, the possession of the land was admittedly taken in the year 1979 as held by the learned Reference Court. Notification under Section 4 of the Act was issued on 26.12.1979. Learned Advocate General urges that the Court has awarded interest from the date of taking possession and it could not in any event be earlier than the date of Notification under Section 4 of the Act. There is no dispute with this proposition which is now settled. However, in this case there is no evidence on the record to show that the Notification is not contemporaneous with the taking of possession of the land. This submission, therefore, requires to be rejected. Learned Advocate General places reliance on the judgment of this Court in Narotam Ram vs. Land Acquisition Collector and Others, 2002(3) Shim.L.C.45 and L.A.C. and another vs. Avinder Singh, Latest HLJ 2008 (HP) 891 in support of his contention. There is no dispute with the proposition that interest is payable as held therein. This judgment is passed on the law laid down by the Supreme Court. At the same time, the Court also noticed that in Land Acquisition Officer & Asstt.Commissioner and another vs. Hemanagouds and others (2005) 12 SCC 443, the right of the claimants-land owners for compensation for the use and 13 occupation prior to the issuance of the Notification under Section 4 of the Act could not be ignored and required adjudication. However, for the purpose of the present case I am not at all entering into this controversy as the date of taking over possession has not been shown to be earlier than the date of Notification. On the question of the grant of interest, in Sunder vs. Union of India, (2001)7 SCC 211, the Supreme Court held that solatium was a part of compensation. The Court holds:- “24. The proviso to Section 34 of the Act makes the position further clear. The proviso says that "if such compensation" is not paid within one year from the date of taking possession of the land, interest shall stand escalated to 15% per annum from the date of expiry of the said period of one year "on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry". It is inconceivable that the solatium amount would attract only the escalated rate of interest from the expiry of one year and that there would be no interest on solatium during the preceding period. What the legislature intended was to make the aggregate amount under Section 23 of the Act 14 to reach the hands of the person as and when the award is passed, at any rate as soon as he is deprived of the possession of his land. Any delay in making payment of the said sum should enable the party to have interest on the said sum until he receives the payment. Splitting up the compensation into different components for the purpose of payment of interest under Section 34 was not in the contemplation of the legislature when that section was framed or enacted. 25. We may also point out that different High Courts have taken the same view in the follwing decisions. 26 G. Venkatesh v. Special Land Acquisition Officer, AIR 1975 Karnataka 95, B. Ravinder Reddy v. Special Deputy Collector, Land Acquisition (Industries), Hyderabad, AIR 1981 Andh Pra 381, State of Haryana v. Smt. Kailashwati, AIR 1980 Punj and Har 117 and Hindustan Aeronautics Ltd. v. Muniswamy Reddy, AIR 1993 KAR 77. 27 We think it useful to quote the reasoning advanced by Chief Justice S. S. Sandhawalia of the Division Bench of the Punjab and Haryana High Court in State of Haryana v. Smt. Kailashwati, (AIR 15 1980 Punj and Har 117, Para 10) (supra ). "once it is held as it inevitably must be that the solatium provided for under Section 23 (2) of the Act forms an integral and statutory part of the compensation awarded to a landowner, then from the plain terms of Section 28 of the Act, it would be evident that the interest is payable on the compensation awarded and not merely on the market value of the land. Indeed the language of S. 28 does not even remotely refer to market value alone and in terms talks of compensation or the sum equivalent thereto. The interest awardable under Section 28 therefore would include within its ambit both the market value and the statutory solatium. It would be thus evident that the provisions of Section 28 in terms warrant and authorise the grant of interest on solatium as well. " 28. In our view the aforesaid statement of law is in accord with the sound principle of interpretation. Hence the person entitled to the compensation awarded is also entitled to get interest on the aggregate amount 16 including solatium. The reference is answered accodingly. Answered accordingly.” These appeals are accordingly disposed of. The submissions made on behalf of the State that the valuation of the land is not in accordance with law are rejected. I hold that the learned Court below has correctly assessed the value of the land. There is no evidence on the record to show that the interest awarded by the Court is prior to the date of issuance of Notification under Section 4 of the Act. The submission of the learned Advocate General, that this is the situation in the present case, therefore, deserves to be rejected. These appeals are accordingly disposed of. I hold that the compensation has been correctly assessed by the learned Reference Court except in so far as the award of interest on solatium etc. is concerned. The appellant shall be entitled to this interest in terms of the law laid down by the Supreme Court in Sunder’s case supra. There shall be no order as to costs. January 7, 2010 (Dev Darshan Sud) (aks) Judge.