IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RFA No.287 of 2003 alongwith RFA Nos.337 of 2006, 17, 18 and 36 of 2007. Date of decision: 02.07.2010. 1. RFA No.287 of 2003 & Cross Objection No.351 of 2004 HP Housing & Urban Development Authority …Appellant Versus Shri Ram Karan & Others …Respondents 2. RFA No.337 of 2006 & Cross Objection No.442 of 2006. HP Housing & Urban Development Authority …Appellant Versus Smt.Santosh Kumari & Others …Respondents 3. RFA No.17 of 2007. HP Housing & Urban Development Authority …Appellant Versus Shri Nagar Mal & Others …Respondents 4. RFA No.18 of 2007. HP Housing & Urban Development Authority …Appellant Versus Shri Pat Ram & Others …Respondents 5. RFA No.36 of 2007. HP Housing & Urban Development Authority …Appellant Versus Shri Ramanand & Others …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Appellant(s): Mr.Bhupender Gupta, Senior Advocate with M/s.Neeraj Gupta and Chander Narayan Singh, Advocates. For Private Respondents: Mr.Ramakant Sharma, Advocate. For the Respondent-State/: Mr.R.K. Bawa, Advocate General LAC. with Ms.Ruma Kaushik, Additional Advocate General. Dev Darshan Sud,J. These appeals are being taken up together for decision as they arise out of the same Notification for 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 acquisition of land being acquired for the purposes of setting up a Housing Board Colony. 2. The land is situated in village Basal. Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the `Act’) was issued on 28.10.1997. Thereafter, the objections under Section 5(A) of the Act were invited by the Collector who proceeded to award market value of the land at the rate of Rs.4,75,000/- per hectare for both `Ghasni’ and `Charand’ with respect to the two Khasra Numbers, subject matter of appeal being RFA No.287 of 2003. The respondents being dis-satisfied with the award, approached the learned reference Court under Section 18 of the Act for enhancement. Before the learned reference Court it was urged on behalf of the appellants herein that the compensation was more than adequate as more than 50% of the land was to be utilized for building of roads, path, sewerage, ground space and other developmental activities and therefore deduction of 50% of the value of the land was required. 3. In order to prove their case, S/Shri Ram Nath PW-1, Bhagwan Singh PW-2, Suresh Kumar PW-3, Sanjay Kumar PW-4, Surjan Singh PW-5, Satpal PW-6 and Parkash Chand PW-7 were examined by the plaintiff. In addition, awards Ex.P-1 and P-2 were also tendered in evidence in order to establish the market value of the land. Coming to the evidence on record, learned Reference Court considered the evidence of PW-1 Shri 3 Ram Nath, who stated that his land is situated about 2½ kilometer from Chambaghat, about 100 meters above Chambaghat-Kandaghat via Basal Road, and it had 500 trees thereon. The land was possessed of a permanent water source. There were `Daru’ (form of pomegranate) trees for which compensation at the rate of Rs.4000/- per tree was claimed and in addition there were `Kainth’ and `Chill’ trees where again a rate of Rs.2,000- to 1,500/- per tree was claimed. This defence was clear in his evidence that the land was absolutely flat and no development was involved. Various sale deeds i.e. sale deed Ex.PW-1/A, dated 1.12.1995, where 1034 square meters of land has been sold in Basal for Rs.4,00,000/- for setting up of a factory, Ex.PW-1/B sale deed dated 7.6.1997 whereby 355 square meters of land was sold in the same village for Rs.1,78,000/-, sale deed Ex.PW-1/C, dated 27.9.1997 where also 189 square meters of land was sold at the rate of Rs.1,20,000/-, sale deed Ex.PW-1/D, dated 22.6.1999 where again 150 square meters of land had been sold for Rs.1,50,000/- and the sale deed Ex.PW- 1/E, dated 1.5.1996, again 3683 square meters of land at the rate of 1,38,080/- was sold and award Ex.PW-1/F, dated 3.1.1997 in case of Abnash Chander Mehra vs. State & Another were tendered in evidence. In addition, Ex.PW-1/M, report of the Forest Department and Ex.PW-1/N which is the advertisement of the H.P. Housing Board advertising the sale of flats ranging 4 from Rs.5.50 lacs to Rs.12 lacs in three categories, was placed on the record of the case. The petitioner claimed compensation at the rate of 1200/- rupees per square meter. 4. Ex.PW-1/F amount awarded in reference petition by the learned District Judge on dated 3.1.1997 pursuant to a Notification which was issued on 27th January, 1990 granting a rate of 350/- rupees per square meter of the land which was also situated in village Basal. 5. PW-2, Bhagwan Singh is General Power of Attorney of Lachhmi Devi, has proved on record sale deed Ex.PW-1/A for a piece of land situated in ½ kilometer from village Basal. PW-3 Suresh Kumar is the vendee of Ex.PW-1/A. PW-4 Sanjay Kumar has proved Sale Deed Ex.PW-1/E for the purchase of land measuring 3869 square meters at Basal for Rs.12,38,080/-. He states that this land is situated near or adjacent to the road. 6. RW-1 Diwan Chand states that the total area of the land to be acquired is 1,08,604 square meters and it is being utilized 38% for residence purpose, 32% for green area, 2% for commercial structures and remaining for paths, roads and other public amenities etc. Plan Ex.RA was brought on the record to show how and in what manner the land is to be utilized. He states that this includes establishment of school, health centre, park and community centre, separate link 5 road from Chambaghat to Kandaghat via Basal etc. He expresses ignorance with respect to Ex.PW-1/N where the Housing Board intends to sell this property at a rate of Rs.3,500/- per square meter. This is rather strange since this witness is none other than an Assistant Senior Architect of the Housing Board. RW-2, Suresh Kumar has proved on record Ex.RP which is a sale deed and its value. RW-3, Gita Ram, who is Assistant Engineer, H.P. Housing Board, states that the land is situated at the distance of 5 kilometers from new bus stand and 3 kilometers from Chambaghat. He further states that only 40% land is usable for construction. He says that before acquisition of the land, the decision for acquisition was taken by the higher Authorities after due deliberationkeeping in view the advantages/dis-advantages. He admits in cross- examination that there is nothing on the record to show that only 40% of the land is usable. RW-4, Gagan Sharma, Reader to Tehsildar, Solan, proves sale deeds Ex.RC to Ex.RE. RW-5, Anil Kumar Sood, says that he had purchased land measuring 835 square meters, situated in Basal for a consideration of Rs.65,000/-. RW-6, Bhagmal, is the Kanungo with H.P. Housing Board, who tries to establish the situation of the land. RW-7 is again one of the vendees who purchased the land. 7. Before adverting to the respective submissions made by the learned Senior Counsel and counsel for the parties, what is required to be taken 6 note of is that the fact that this Court in RFA No.172 of 1995, titled: Manohar Lal vs. State of H.P. & Another along with other appeals decided on 24.11.2003, which were taken up for hearing and disposed of by a common judgment by this Court. The contentions urged on behalf of the petitioners-claimants in three petitions were:- “All these pleas have been controverted by the learned Senior Counsel S/Shri G.D. Verma and Bhupender Gupta as well as by Mr.Sanjeev Kuthiala, Advocate. According to them, compensation awarded is wholly inadequate. It is less than the market value of the land on the date of publication of notification under Section 4 of the Act. Per them, the lands which are subject matter of these appeals were situate in a developed area adjoining municipal limits of Solan town as well as industrial area, Chambaghat. In the area in question there is shopping complex, residential buildings of the VIPs. There is post office, bank, school and Patwar Khana, dispensary etc. Besides this, the industrial activity of mining etc. is also going on. In addition to these facts learned Counsel submitted that there are commercial buildings as well as residential houses of Senior IAS Officers in the close proximity of the land in question. Thus compensation needs to be enhanced. According to them, if not in all the cases at least 7 in such cases wherein cross objections have been filed.” 8. This Court after thorough scrutiny of the evidence concluded:- “Taking clue from the above, it cannot be said that Mauza Basal which is admittedly in close proximity, as well as in continuity to the Municipal Limits of Solan town, did not have the potential of its being developed by raising residential, commericial as well as Industrial Township in or around the land under acquisition are there. To this effect there is evidence on record, particularly statements of PW-1 Liaq Ram and PW-2 Mohan Lal. Both statements are suggestive that the area where the land was situate was upcoming and was in the process of developing. It is further indicative of the fact that it had enough potential for future development.” 9. The land subject matter of the present appeals is also situated in Basal. It has now been established as noticed above that the area acquired from the petitioner has tremendous potential for development and is easily accessible to all modern amenities which would form the foundation and the basis for awarded a just compensation. 10. It is, in these circumstances that, not only the award of just compensation is to be determined. 8 What is undisputed is that the area acquired is specially selected for the purposes of setting up a Housing Board Colony. It is not just a random selection, but a conscious decision having been taken after considering the feasibility at all stages including the technical aspects, as would be apparent from the evidence of the respondents themselves. RW-3, Shri Gita Ram, Assistant Engineer, H.P. Housing Board, says that the decision is taken after keeping in view all the pros and cons and suitability of the site. 11. The evidence of PW-1 Shri Ram Nath is to the effect that this land is situated at a distance of 2½ kilometers from Chambaghat-Kandaghat Road and 100 meters from the main road. It was not cultivated land but has various fruit bearing and other trees. It had a permanent water source. The evidence of the petitioner is that the land is situated near Himachal Exicom Communication factory. Ex.PW-1/N is the advertisement which has been issued by none else than the Housing Board itself advertising for sale of plots/flats etc. It provides for the sale of land at the minimum price of Rs.3,500/- per square meter. This is not to say that the petitioner would be getting that amount of value but it is only indicative of the fact that the land is valuable. The other evidence on the record Ex.P1, Ex.P2 and Ex.PW- 1/A, which are judgments of the reference Court dealing with the enhancement of compensation awarded to the land owners, may be considered. Ex.PW-1/F, award of 9 the reference Court, relates to acquisition of a small piece of land for construction of Chambaghat-Kandaghat Road, wherein in view of Notification under Section 4 of the Act, dated 28th January, 1990 and the rate of Rs.350/- per square meter was awarded. Ex.P-1 judgment relating to the acquisition of land for Solan-Bye Pass Road for which Notification under Section 4 of the Act was published on 10.12.1988 and the value of the land awarded was Rs.500/- per square meter. Similarly, Ex.P-2 is again an award made for land in the year 1992 for which Notification under Section 4 of the Act was issued on 17.6.1989. These are illustrations of the fact that the land is valuable and has a lot of potential. These lands are situated near and around the acquired land. Of-course, the area acquired by these awards is not large as is the subject matter of the present appeals. If the price per square meter in all these three reference petitions is calculated, it would come to Rs.1,800/- and if averaged, it would come to Rs.600/- per square meter which is approximately what the learned reference court has awarded. Taking this into consideration, I do not find that there is anything unreasonable with the amount awarded by the learned reference Court. 12. In Avinash Dhavaji Naik vs. State of Maharashtra, (2009)11 SCC 171, the Court while dealing with the question of potentiality, holds:- 10 “14. The potentiality of a land for the purpose of development as also for building purposes would depend upon a large number of factors. For the said purpose, the court may not only have to bear in mind the purpose for which the lands were sought to be acquired but also the subsequent events to some extent. 15. In case a case of this nature the court may proceed on the presumption that such a vast tract of land viz.96 villages were sought to be acquired at the same time for construction of New Bombay. We are not unmindful of the fact that development in the entire area was not possible at one point of time. Development of the area must have taken place in phases. We are also not unmindful of the fact that the price of the land may skyrocket depending upon the development as also future potentiality.” 13. The Court subsequently holds that:- “26. In a case of this nature, in our opinion, some guesswork is inevitable. (See Viluben Jhalejar Contractor v. State of Gujarat, (2005)4 SCC 789). We must, however, add that the judgment rendered by the High Court in Civil Appeals Nos.4264-65 of 2002 may be a safe guide particularly when the Reference Court itself opined that the valuation of the land should be determined at Rs.10 per square meter. Thus, the said valuation adopted may 11 be considered as providing for some guideline.” 14. Learned Senior counsel appearing for the appellants urges that the land which has been acquired does not possess the potentiality of future development. This submission cannot be accepted for the reasons that in the judgment in RFA No.172 of 1995 portion of which has been extracted above, this Court on the evidence on record has rejected such a contention. Coupled with the evidence on record of these cases, I do not find that there is anything on record to suggest that the land does not possess any potential. 15. Learned Senior counsel for the appellants submits that atleast 40% should have been deducted as developmental charges. This submission cannot be accepted as is evident from the evidence of RW-3 Shri Gita Ram who states that there is no documentary evidence which has been produced on the record to show that 40% of land for 600 plots was usable. True, some area is to be utilized for the purposes of common facilities as also approach road etc. as serveriant/ /sub-serveriant to the entire Housing Board Colony and not to one individual. These are to be treated as necessary, essential and in a sense of speaking indispensable to the Housing Colony without which it cannot exist. There is in that sense no wastage of any portion of the land acquired if that is utilized 12 subject to the topographical situation of the site. Now considering the evidence in some detail, the sale deeds relied upon are either predating the acquisition or subsequent thereto. The evidence relied upon by the petitioner herein on the value of the land cannot be accepted outright, as I do not find that there is any similarity of the land acquired and the land sold. Moreover, I cannot persuade myself to hold that the award made by the learned Reference court is unreasonable. The learned reference Court has referred in detail to the factors to be considered, more especially the principles for determining the compensation which are by now well established. The learned Court concludes that irrespective of the classification the proposition to which the land is put to use is exclusive. It also holds on the evidence on record and regarding which I have no difference of opinion that the Housing Board Colony is to be constructed on the acquired land which is near to the industrial complex on the National Highway. He awards a lump sum of Rs.600/- per square meter. In these circumstances I consider this to be a very reasonable amount awarded to the respondents. 16. Looking to the evidence of the respondents, RW-1 Diwan Chand, Assistant Senior Architect with the H.P. Housing Board, who tries to establish that only 38% of the land could be utilized for residence, 2% for commercial purposes and the remaining for paths, roads, 13 public amenities and 32% was totally unusable being green area. His evidence is based on Ex.RA, which is a purported plan of the area prepared by him depicting the MIG, HIG flats and plots. There is no evidence on the record that this plan has either been approved by the Town and Country Planning Department, the Municipal Corporation, sanctioned by the Government or accepted and adopted by the Housing Board as the final plan for utilization of the land. The material on which this plan has been prepared was also not produced on record. It is not as if the plan Ex.RA would perse be adopted without any modification etc. At best it can be treated as the tentative utilization of the land. His cross-examination is interesting. He does not know about the Notification under Section 4 of the Act. He also states that the plan does not reflect so called useless area. The land is subject to the provisions of the H.P. Town and Country Planning Act. He admits that there is facility of School, Health Centre, Park and Community Centre. On Ex.PW-1/N, which is admittedly an advertisement issued by the Housing Board for sale of land/flats, he express ignorance and does not know whether the Housing Board intended to sell the land at the rate which would work out to Rs.3500/- per square meter. He says that he is only concerned with the preparation of lay out plans. 17. RW-3, Geeta Ram is the Assistant Engineer with the H.P. Housing Board. Instead of proving 14 anything from the record, he states orally that there is only 40% of the land which is usable for construction and that the Housing Board has to pay Rs.7 lacs for acquiring the land for construction of road to reach the land and spend 11 lacs rupees on the construction. There is no documentary evidence in support of what he states. He admits that the decision is taken by the acquiring Authority by “Higher Authorities” by consensus after considering all the pros and cons of the land and in this case the main point to be considered was as to whether the land is fit for construction or not. He tried to make an attempt to show that the land is not situated near the facilities available in Solan Town. His statement cannot be accepted for the reasons that whatever he states has to be established by documentary evidence which has not been produced on record. His other assertion that the land does not possess any potentiality requires to be rejected out rightly as that point has been decided by the judgment of this Court as noticed above. In fact, he says that the Authorities of Electricity and Water would require expenditure of Rs.one crore each for providing infrastructure and other facilities on the land. There is no documentary evidence on record to establish this fact neither any attempt has been made to produce anybody from the Electricity or Water Departments to substantiate this fact. In cross-examination he 15 admits, “We do not have any document that only 40% land was usable”. The Supreme Court has now settled the law that not only the deductions to be pleaded but proved. (See: C.R. Nagaraja Shetty (2) vs. Special Land Acquisition Officer and Estate Officer and Another, (2009)11 SCC 75). The evidence of RW-6, Bhagmal, Kanungo of the Housing Board, is no different. 18. Considering the entirety of the case, sale deeds Ex.PW-1/A, dated 1.12.1995, Ex.PW-1/B, dated 7.6.1997 and Ex.PW-1/C, dated 27.9.1997, establishes that the value of the land varies from 850/- to 1000/- per square meter is proximate in point of time. It is undisputed before me that the land has been acquired for the purposes of building of Housing Board Colony. In other words for commercial exploitation by the appellant, it was but natural that some deduction for development etc. would also be made. But at the same time, on the value awarded by the learned reference Court, I do not deem it proper that any deduction may be granted. This is for the reasons that there are three earlier judgments of the learned reference Court on the record of the case. Ex.P1 is the judgment dated 28.9.1992 with respect to acquisition of land pursuant to Notification dated 25.5.1988 for construction of the “Solan Bye-pass Road”. Ex.P-2, is again judgment dated 29.2.1992 with respect to Notification under Section 4 of the Act which was published on 17.6.1989 again for the purpose of construction of Solan Bye-Pass Road” 16 where an award of Rs.950/- per square meter has been made and Ex.PW-1/F, which is the judgment dated 3.1.1997 with respect Notification under Section 4 of the Act issued on January 27, 1990 for land acquired in Bassal for which Rs.350/- per square meter has been awarded. The Solan Bye-pass Road which was constructed is quiet near to the acquired land. It is only on the basis of the approximation and average that the compensation can be awarded. What is required for consideration is that in the interest of both the appellant(s) as also the respondents, who in some cases have preferred Cross-Objections to show increase in the value of the land after acquisition to be the indicators of the value of the land between 1988 to 1990 and considering the fact that the Notification in this case was issued on 1996, this Court can take notice of the fact that the value of the land would increase as the entire area in and around Solan was developing fast, providing potential for development of Industries and other commercial activities etc. 19. Before adverting whether just compensation has been awarded, Cross Objection No.351 of 2004 in RFA No.287 of 2003 may be considered. The appellant herein seeks to establish that the value of the land is more than 1,000/- rupees per square meter for which purpose, CMP No.711 of 2005 under Order 41 Rule 27 of the Code of Civil Procedure for leading additional evidence has been filed. This consists of judgment dated 5.1.2005 17 disposing of the land reference petitions again with respect to Mauza Basal Abadi Khas. This pertains to acquisition made in the year 8.9.2001 and acquisition also is by the appellant. The award amount is Rs.1400/- per square meter. The second document placed on the record of the case is the tentative cost of Type-II Plots, measuring 135 square meters, which have been sold at the rate of Rs.3,600/- per square meters which works out to Rs.4,86,000/- at Bassal. This letter of allotment has been issued on 23.9.2004 for same area. Ex.A-3 is an advertisement issued in Amar Ujala, Chandigarh Edition, dated 2nd May, 2004, inviting applications for the sale of Flats/Plots at Kandaghat and Basal (Solan) for the same area on freehold basis where Plots are being sold at the rate of Rs.4,500/- per square meter, Rs.3,600/- per square meters and Rs.3,600/- per square meter. Similarly, the in advertisement in `The Tribune’, Chandigarh Edition, the cost of plots is given at Rs.3,600/- per square meter for the same area in Bassal. Similarly, in advertisement in `Divya Himachal’ dated 4th June, 2005, the