IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No.125 of 2003 with RFA No. 222 of 2003 Date of Decision : September 8, 2008. RFA No. 125 of 2003 The L.A.C. & another …Appellants. Versus: Hari Singh …Respondent. RFA No. 222 of 2003 The L.A.C. & another …Appellants. Versus: Moti Ram & Ors. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellants: Mr. R. K. Bawa, Advocate General with Mr. Vivek Thakur, Addl. A. G. and Mr. Anil Jaswal, Dy. A.G. For the respondents. Mr. M. L. Chauhan, Advocate. Sanjay Karol, J. (Oral) Both the appeals arise out of a Common Award dated 10.5.2002 passed by the District Judge, Kinnaur Civil Division at Rampur Bushahr, H.P. in Land Reference Case No. 95 of 1999 titled as Hari Singh v. State of H.P. and another, and Land Reference Case No. 9 of 2000 titled as Moti Ram and 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 others v. State of H.P. and another, therefore, they are being heard and disposed of together. For the public purpose, namely, Bhutti-Delath road, the State of H. P. issued a Notification dated 17.2.1994 (published in H.P. State Gazette on 19.3.1994) under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’) seeking to acquire the claimants land bearing Khasra Nos. 107/1, 232/1 measuring 0-06-43 hectare and Khasra No. 19/1, measuring 0-04-31 hectare situate in revenue estate Kharahan, Sub Tehsil Nankhari, Distt. Shimla. The acquisition proceedings concluded with the passing of the Collector’s Award No.SML- 3/89, dated 18.2.1997 under Section 11 of the Act and Supplementary Award No. 3/89, dated 30.9.1997. The Collector determined the market value for different categories of land as under:- Classification of land Rates of land per Bigha. 1. Kiar Awal Rs.10,106.95 2. Kiar Doem Rs. 7,219.25 3. Bakhal Awal Rs. 3,529.41 4. Krali Awal Rs. 1,443.85 5 Banjar Kadeem Rs. 500.00 In the supplementary Award, the compensation for the fruit bearing plants on the land was also determined. Aggrieved by the same, the claimants filed a petition under Section 18 of the Act, claiming enhancement of the compensation of market value of the land and also enhancement of compensation of fruit growing trees. 3 Appreciating the material on record, the Court below rejected the claimants’ claim for enhancement of the compensation towards the trees but however, with regard to the land based on the Sale Deed Ext.PW-3/A, the market value of the land was determined to be Rs.35,000/- per bigha regardless of the classification and category of the land. The State has filed the present appeals. The claimants have neither filed any appeal nor any cross-objections. Mr. Anil Jaswal, Dy. Advocate General has vehemently argued that the enhancement is on the higher side and the exemplar sale pertaining to small transactions could not have been relied upon for determining the market value of the acquired land. It has also been argued that having determined the market value, the rates could not have been uniformly applied for all categories of land. Per contra, Mr. M. L. Chauhan, learned counsel for the respondents-claimants has supported the Award for the reasons set out. Mr. Chauhan, however, clarified that his clients are not seeking any further enhancement on any count. I have heard the learned counsel for the parties and also perused the record. From the claimants’ evidence, S/Shri Jawahar Kaith (PW-1), Krishan Singh (PW-2), Khushi Ram (PW-3), Hari Singh son of Shri Prabhu Dayal (PW-4) and Hari Singh son of Shri Mansukh (PW-5) and also the respondents sole witness Shri Bisheshwar Lal (RW-1), it is evident that the land in question 4 was fertile, put to agricultural use and the claimants were having income therefrom. Its location, shape, size, tenure, use and potentiality as compared with the exemplar Sale Deed Ext.PW- 3/A also stand proved on record. The acquired land is situated in the apple growing region of the State of Himachal Pradesh. Even though it was not connected with the road but however, because of its proximity with the township situated on the National Highway, its potential of being put to residential as well as non-residential use duly stands proved on record. It had all amenities, such as, water, electricity and school within its vicinity. Shri Bisheshwar Lal (RW-1) has categorically stated that Jahu Chak adjoins two revenue estates Kharahan and Juni. He has placed on record the average market price Ext.RX pertaining to the land revenue estate Bhamnoli but has admitted that land in revenue estate Kharahan is better than the revenue estate Bhamnoli. Therefore, the average market price produced by the respondent has rightly not been considered by the Court below. Shri Khushi Ram (PW-3) has proved on record Sale Deed Ext.PW-3/A dated 28.3.1994, whereby 4 biswas of land stood sold for Rs.8000/- (Rs.40,000/- per bigha). It pertains to the same village and the similarity of the said land with that of the acquired land stands proved on record. It is a settled law that sale transaction pertaining to a small chunk of land can be made basis for determining the 5 market value of the land. This however is subject to balancing the advantages and the dis-advantages by comparison. Market value at the time of Notification under Section 4 of the Act is to be seen and while fixing such value of the acquired land, one of the things to be considered is the price at which the parties are ready to sell and purchase the land. In Shaji Kuria Kose vs. Indian Oil Corporation Ltd., (2001(7) SCC 650), the Apex Court laid down the factors for assessing value of the acquired land as under:- “True that Courts adopt comparable sales method of valuation of land while fixing the market value of the acquired land. While fixing the market value of the acquired land, comparable sales method of valuation of the land such as capitalization of net income method or expert opinion method. Comparable sales method of valuation is preferred because it furnishes the evidence for determination of the market value of the acquired land at which a willing purchaser would pay for the acquired land if it had been sold in the open market at the time of issue of notification under Section 4 of the Act. However, comparable sales method of valuation of land for fixing the market value of the acquired land is not always conclusive. There are certain factors which are required to be fulfilled and on fulfillment of those factors the compensation can be awarded, according to the value of the land reflected in the sales. The factors laid down inter alia are (1) the sale must be a genuine transaction, (2) that the sale deed must have been executed at the time proximate to the date of issue of notification under 6 Section 4 of the Act, (3) that the land covered by the sale must be in the vicinity of the acquired land and (4) that the size of plot of the land covered by the sales be comparable to the land acquired. If all these factors are satisfied, then there is no reason why the sale value of the land covered by the sales be not given for the acquired land. However, if there is a dissimilarity in regard to locality, shape, site or nature of land between land covered by sales and land acquired, it is open to the court to reduce the compensation for acquired land than what is reflected in the sales depending upon the disadvantages attached with the acquired land.” Also held in ONGC Ltd. v. Sendhabhai Vastram Patel and Others (2005(6) SCC 454), Panna Lal Ghosh & Ors. v. Land Acquisition Collector and Ors. (2004(1) SCC 467) and Viluben Jhalejar Contractor v. State of Gujarat (2005(4) SCC 789). In Bhagwathula Samanna v. Special Tehsildar & Land Acquisition Officer (1991(4) SCC 506), it has been held as under:- “In fixing the market value of a large property on the basis of a sale transaction for smaller property, generally a deduction is given taking into consideration the expenses required for development of the larger tract to make smaller plots within that area in order to compare with the small plots dealt with under the sale transaction. However, in applying this principle of deduction it is necessary to consider all relevant facts. It is not the extent of the area covered under the acquisition which is the only relevant factor. If smaller area within the large tract 7 is already developed and situated in an advantageous position suitable for building purposes and have all amenities such as roads, drainage, electricity, communications etc. then the principle of deduction simply for the reason that it is part of the large tract acquired, may not be justified.” Applying the aforesaid principles of law, in my view, the Court has already taken into account the locational disadvantage and given necessary discount for the same while determining the market value. After balancing the plus and minus factors, the Court has determined the same to be Rs.35,000/- per bigha. It is also to be kept in mind that even the acquired land is not a large chunk, therefore, exemplar Sale Deed Ext.PW-3/A which pertains to 4 biswas of land has been rightly looked into by the Court below. I see no illegality, infirmity or perversity in the same. The entire land is to be utilized for the purpose of construction of road. It is not a case that some part of the land is to be wasted or left out for carrying out any development activities. While determining the question as to whether the principle of deduction at the time of determining the market value of large track of land on the basis of exemplar of small piece of land is to be carried out or not, the Apex Court in Atma Singh and others v. State of Haryana and another (2008(2) SCC 568) after considering its earlier decisions rendered in Administrator General of W.B. v. Collector, Varanasi (1988(2) SCC 150), Bhagwathula Samanna v. Special Tehsildar & Land 8 Acquisition Officer (1991(4) SCC 506), Administrator General of W.B. v. Collector, Varanasi (2003(1) SCC 354), Chimanlal Hargovinddas v. Special Land Acquisition Officer (1988(3) SCC 751), Basant Kumar v. Union of India (1996(11) SCC 542), K. Vasundara Devi v. Revenue Divisional Officer(LAO) (1995(5) SCC 426), H.P. Housing Board v. Bharat S. Negi (2004(2) SCC 184) drew a distinction and held that unlike the land acquired by the Housing Board for setting-up of a Colony, the land acquired for the purpose of setting-up a sugar factory, no deduction at all was required to be made and the exemplar of small parcel of land can be considered for determining the market value of the acquired land. The Court held that where the land is to give substantial returns, there is no justification for making any deduction from the price exhibited by the exemplars even if they are of small plots. In Union of India v. Harinder Pal Singh and others (2005(12) SCC 564), while determining the compensation for acquisition of land pertaining to five different villages, the Apex Court uniformly awarded a sum of Rs.40,000/- per acre irrespective of the classification and the category of the land. Further, in Nelson Fernades v. Special Land Acquisition Officer (2007(9) SCC 447) while dealing with the case where the land was acquired for laying a Railway line, the Court held that no deduction by way of development charges was permissible as there was no question of any development 9 thereof. Therefore, in my view, the Court below has rightly arrived at its conclusion that the market value so determined has to be uniformly applied to the entire acquired land. For the aforesaid reasons, the appeals are dismissed. ( Sanjay Karol ), Judge. September 8, 2008. (rana)