IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No. 359 of 2006 with RFA No. 357 of 2006 alongwith Cross-Objections No.419 of 2006, RFA No 333 of 2006, RFA No. 360 of 2006 alongwith Cross-Objections No.12/2007, RFA No. 361 of 2006 alongwith Cross- Objection s No.420 of 2006, RFA No.363 of 2006 alongwith Cross-objections No.13/2007, RFA No. 366 of 2006 alongwith Cross-objections No.14/2007, RFA No. 367 of 2006 alongwith Cross-objections 2 of 2008, RFA No. 70 of 2008 and RFA No. 71 of 2008 Date of Decision: 23rd December,2008 RFA No.359 of 2006 State of H.P. & another Versus Lobhi Ram & others RFA No.357 of 2006 State of H.P. & another Versus Dhanu RFA No.333 of 2006 Lobhi Ram & others Versus L.A.C. RFA No.360 of 2006 State of H.P. & another Versus Gulaba & others RFA No.361 of 2006 State of H.P. & another Versus Gangu Ram RFA No.363 of 2006 State of H.P. & another Versus Mast Ram & others RFA No.366 of 2006 State of H.P. & another Versus Dwarku Devi & others RFA No. 367 of 2006 State of H.P. & another Versus Prem Lal & others RFA No. 70 of 2008 Babu Ram Versus L.A.C. RFA No. 71 of 2008 Garja Ram Versus L.A.C. 2 Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. RFAs No.359,357,360,361,363,366 and 367 of 2006 For the appellant-State : Mr.R.K.Bawa, Advocate General, with Mr.Anil Jaswal, Deputy Advocate General. For the respondent(s) : Mr.R.K.Gautam, Sr. Advocate, with Mr.Naveen K.Bhardwaj, Advocate. RFAs No.333 of 2006, 70 and 71 of 2008 For the appellant(s) : Mr.R.K.Gautam, Sr. Advocate, with Mr.Naveen K.Bhardwaj, Advocate For the respondent(s) : Mr.R.K.Bawa, Advocate General, with Mr. Anil Jaswal, Deputy Advocate General. Sanjay Karol, J. (Oral) All the aforesaid appeals and cross-objections arise out of a common award dated 28.2.2006 passed by learned District Judge, Bilaspur, H.P. in various land reference petitions. For the public purpose, namely, construction of Namhol Asha Majari road, land belonging to various persons situated in Village Dunglu, Tehsil Sadar, District Bilaspur, H.P. was acquired by the State Government. Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) was issued on 13.9.1993, which was published in H.P. Rajpatra on 2.10.1993. The Collector, Land Acquisition, passed Award No. B-6/89=11 of 1997 under Section 11 of the Act on 20.1.1997. In terms of the said award, the market value of the acquired land, category-wise was determined as under:- Whether the reporters of Local Papers are allowed to see the Judgment? 3 Variety of land Rate per Biswa Per Bigha Kohli Aval Rs.615.77 12,315.40 Kohli Doem Rs.515.92 10,318.40 Auderli Aval Rs.416.06 8,321.20 Auderli Doem Rs.366.14 7,322.80 Baharli Aval Rs.316.21 6,322.80 Baharli Doem Rs.149.78 2995.60 Banjar & Khariyater Rs.49.93 998.60 Being dissatisfied with the same, the land owners filed Land Reference Petitions under Section 18 of the Act claiming enhancement of compensation @ Rs.10 lacs per Bigha. The Land Reference petitions were consolidated for the purpose of recording the evidence by the District Judge vide orders dated 30.5.2003 and the evidence was directed to be recorded in Land Reference Case No.12 of 2002, titled as Dhanu vs. L.A.C. The tabular chart depicting RFA No. alongwith cross objections, Land Reference Petitions, name of the parties, Khasra number and the total area acquired is as under:- RFA No. alongwith cross- objection Land Ref. Petition No. Name of parties in the Court below Khasra No. Area 357 of 2006, C.O.No.419 of 2006 12/2002 Dhannu vs. LAC 160/1 2.2. bighas 359 of 2006 and 333 of 2006 36/2003 Lobhi Ram etc. vs. LAC 406/1,406/3, 407/1 2.19 bighas 360 of 2006, C.O. No.12/2007 37/2003 Gulaba etc. vs. LAC 178/1 1.8 bighas 361 of 2006, C.O. No. 420 of 2006 38/2003 Gangu vs. LAC 437/1, 438/1, 436/1, 436/2 2.11 bighas 363 of 2006, C.O.No.13/2007 47/2002 Mast Ram etc. vs. LAC 387/1 1.3 bighas 366 of 2006, C.O. 14/2007 50/2002 Sh. Durga (deceased) through his 388/1, 304/1 1.15 bighas 4 LRs Smt. Dwarku Devi etc. vs. LAC 367 of 2006, C.O. 2 of 2008 51/2002 Roda Ram vs. LAC 166/1 1.3. bigha 70 of 2008 49/2002 Babu Ram vs. LAC 377/1 0.5 bigha 71 of 2008 48/2002 Garja Ram vs. LAC 375/1 0.8 bigha Based on the pleadings of the parties, the District Judge framed the following issue:- 1. Whether the Collector, Land Acquisition, had inadequately assessed the market value of land under acquisition and fruit bearing and non-fruit bearing trees situate therein? OPP Opportunity was afforded to the parties to lead evidence. Appreciating the material on record, the Court below while rejecting the exemplar sale deeds placed on record by the parties took into account the awards Ext.PA and Ext.PB passed by the District Judge in Land Reference Petitions whereby land was acquired for the purpose of Namhol – Bahadurpur road vide Notification issued in March, 1995. The said awards pertain to acquisition of land in the adjoining Village Ghyal. The Court below assessed the market value of the acquired land @ Rs.2000/- per biswa (Rs.40,000/- per bigha), irrespective of the classification of land. Additional compensation on the enhanced amount, in accordance with the provisions of the Act was also awarded. Both the State and the claimants have assailed the award for different reasons. Mr. Bawa, learned Advocate General, has argued that the compensation awarded is much on the higher side and Awards Ext.PA and 5 Ext.PB could not have been relied upon for the purpose of determining the market value. He vehemently argued that in the absence of any material proving the market value of the acquired land to be higher than what was awarded by the Collector, Land Acquisition, the petitions merit dismissal. On the contrary, Mr. Gautam, learned senior counsel appearing for the land owners has pressed for further enhancement for the reason that the Court wrongly rejected the sale deeds Ext.PA, Ext.PW-2/A to Ext.PW-2/C and Ext.PW-6/A. In any event, the Court below erred in reducing the rates of the market value arrived at on the basis of the examplar awards from Rs.6000/- per biswa to Rs.2000/- per biswa while determining the compensation payable to the claimants. I have heard the learned counsel for the parties and also perused the record. In order to prove its case, the claimants examined 7 witnesses, namely, Shri Dhanu Ram (PW-1), Shri Tilak Raj (PW-2), Shri Mast Ram (PW-3), Shri Ratti Ram (PW-4), Shri Pyare Lal (PW-5), Shri Shanker Singh (PW-6) and Shri Shanker Lal (PW-7). They proved on record sale deeds Ext.PW-2/A, Ext.PW-2/B, Ext.PW-2/C, Ext.PW-6/B and copies of awards Ext.PA and Ext.PB. In rebuttal, respondents examined Shri Roshan Lal Kaundal (RW-1) and tendered in evidence copy of sale deed Ext.RA. That the acquired land situate in Village Dunglu was connected with road and was having all modern facilities, such as, road, school, water, electricity and other government offices has not been denied by the State in the reply filed to the petition under Section 18 of the Act. The same is seriously not under challenge. 6 From the Collector’s award dated 20.1.1997, it is evident that the possession of the land was actually taken by the Public Works Department of the State in the year 1987 and by the year 1989 the road stood constructed and opened for regular traffic. The acquisition proceedings commenced in 1993, as such the claimants were deprived of their constitutional right for a considerable period of time. The claimants’ witnesses PW-1 to PW-7 in one voice have deposed that Villages Ghayal and Namhol adjoin village Dunglu and the land in Village Dunglu is of better quality than that of land in Village Namhol. Witnesses have also deposed that the value of the land in Village Ghayal is Rs. 10 lacs per bigha. PW-1 has categorically deposed that Village Dunglu is just at a distance of half a kilometer from Village Namhol. The same is not disputed as is evident from the cross-examination. The claimants proved on record sale deeds Ext.PW-2/B to Ext.PW-2/C and Ext.PW-6/A. Ext.PW2/B is attested copy of sale deed dated 27.5.1995 whereby land measuring 1 biswa situated in village Namhol, Pargana Bahadurpur was sold by one Ganga Dutt in favour of Shri Pyare Lal, Jagdish, Raj Kumar and Pratap Singh sons of Sh. Inder Singh for consideration of Rs.35,000/-. Ext.PW-2/C is copy of the sale deed dated 27.5.1995 whereby land measuring 2 biswas situated in Village Namhol, Pargana Bahadurpur was sold by one Ganga Dutt in favour of Shri Jindu, Shanker, Sohan Lal sons of Shri Karnu Ram for consideration of Rs.62,000/-. Ext.PW-6/B is attested copy of sale deed dated 21.8.1993 whereby land measuring 1 biswa situated in village Namhol, Pargana Bahadurpur was sold by one Shri Tulsa in favour of Shri Mast Ram son of Shri Kihru, for consideration of Rs.25,000/-. 7 The notification under Section 4 of the Act was issued on 13.9.1993, but, however, the sale deeds pertain to May, 1995. The average of the said deeds prove that the land was sold at a rate of Rs.30,000/- per biswa. Sale deed Ext.RA tendered by the respondents was not considered by the Court below for the simple reason that the evidence revealed that the land under acquisition was not similar to the land purchased and sold vide sale deeds Ext.PW-2/A to Ext.PW-2/C and PW-6/A. The location, size, shape, tenure, user and potentiality of the land purchased and sold by PW-2 to PW-7 was not favourably comparable with the land under acquisition. The same apparently is not correct keeping in view the statements of the claimants’ witnesses as noticed above. In fact RW-1, as stated by him, was not even involved with the acquisition process. He is not even aware of the area and except for his statement there is nothing on record to prove to the contrary. In the absence of any proven material to show the sale transaction of Village Ghayal the sale transactions pertaining to the adjoining village Namhol can be looked into. Award Ext.PA pertains to acquisition proceedings initiated vide Notification dated 29.3.1995 for construction of Namhol – Bahadurpur road. Award Ext.PB also pertains to the same period and for the very same acquisition. The land was acquired in Village Ghayal and based on the material placed on record by the claimants, the District Judge, Bilaspur, vide award dated 22.8.2000 awarded compensation by determining the market value @ Rs.6000/- per biswa, or Rs.1,20,000/- per Bigha. Further this Court in RFA No. 414 of 2006, titled as State of H.P. and another vs. Shankar Dass, decided on 24.3.2008, while dealing 8 with the acquisition proceedings initiated in March, 1995 pertaining to Village Namhol has upheld the award passed by the District Judge in Land Reference Petitions enhancing the market value ranging from Rs.4500/- to Rs.51,000/- per bigha to Rs.1,20,000/- per Bigha. Further this Court in Land Acquisition Collector vs. Puran Ram, Latest HLJ 2008 (HP) 660, has upheld the award passed by the District Judge enhancing the market value of the acquired land from Rs.5000/- per bigha to Rs.1,20,000/- per bigha. The acquisition of the land in the year 1995 in Village Namhol was for the purpose of construction of Namhol – Bahadurpur road. Thus it is evident that both in Village Ghayal and Village Namhol the market value of the land acquired in the year 1995 was at least Rs.1,20,000/- per Bigha. It is a settled law that in the absence of any direct evidence of sale transactions, the judgments and awards passed in respect of acquisition of lands of neighbouring villages can be considered for determining the market value of the land [Union of India vs. Harinder Pal Singh and others, 2005 (12) SCC 564 and Executive Engineer & anr. Vs. Dilla Ram, Latest HLJ 2008 (HP) 1007.]. In Krishan Yachendra Bahadurvaru vs. The Special Land Acquisition Officer, AIR 1979 SC 869, the Apex Court has held that the estimation of market value in many cases must depend largely on evaluation of many imponderables and hence it must necessarily be to some extent a matter of conjecture or guess. The Apex Court in ONGC Ltd. vs. Sendhabhai Vastram Patel and others, (2005) 6 SCC 454 has held that in the absence of any 9 direct evidence on the said point, the court may take recourse to other methods viz. judgments and awards passed in respect of acquisition of lands made in the same village and/or neighbouring villages. The locational advantage and the connectivity of the instant land with road having all facilities is not in dispute. The claimants’ witnesses in one voice deposed that Village Ghayal is adjoining to Village Dunglu and that land of village Dunglu is of better quality. Ghayal is situated at a distance of 1 km. from the acquired land and Namhol is just at a distance of ½ km. This has been so proved by the claimants’ witnesses. There is no serious challenge to the same as is evident from the cross- examination. Therefore, the said Awards can be considered for determining the market value of the acquired land. In the present case, there are two sets of evidence on record to prove the market value of Village Ghayal and also Village Namhol. In terms of the sale deeds the market value of the acquired land in Village Namhol comes to approximately Rs.30,000/- per Biswa. i.e. Rs.6,00,000/- per Bigha. In terms of awards pertaining to Village Ghayal the market value comes to approximately Rs.1,20,000/- per Bigha. Even with regard to the awards affirmed by this Court, as noticed hereinabove pertaining to Village Namhol the market value comes to Rs.1,20,000/- per Bigha. In my view, keeping in view the decision rendered by the Apex court in Administrator General of West Bengal vs. Collector, Varanasi, (1988) 2 SCC 150 and Karan Singh and others vs. Union of India , (1997) 8 SCC 186, the awards and sale deeds of adjoining village subsequent to the year of the instant acquisition can be looked into. The 10 same are thus made basis for determining the market value of the acquired land in the instant case. The question, however, is the extent of deduction to be applied. Various factors negative and positive are to be weighed for the said purpose. It is nobody’s case that prices of the area in question stood increased due to acquisition proceedings. Importantly all developmental activities in and around the area had taken place way back in the year 1987 when the possession was taken and road stood constructed in the year 1989. The Apex court in Basavva (Smt.) and others vs. Spl. Land Acquisition Office and others, (1996) 9 SCC 640, reduced the market value of the exemplar sale transaction by 65% to determine the market value of the acquired land. In the present case, the Court below has made deductions to the extent of 2/3rd i.e. 66.66%. In my view, the approach taken by the Court is just, fair, proper and reasonable in the facts and circumstances of the case. 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 Acquisition Officer (1991(4) SCC 506), Administrator General of W.B. v. Collector, Varanasi (2003(1) SCC 354), 11 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 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. Even this Court since 1998 has been uniformly awarding compensation regardless of classification where the land has been acquired for construction of road (Smt. Gulabi vs. State of H.P., AIR 1998 HP 9 and 12 RFA No.125 of 2003, titled as Land Acquisition Collector and another vs. Hari Singh decided on 8.9.2008, by this Court). The Court below has considered and correctly appreciated the entire material. There is no illegality, irregularity in the impugned award. The market value has been determined fairly. There is nothing on record to justify further enhancement of the amount awarded by the Court below. For the foregoing reasons, all the appeals and cross- objections are dismissed so also the pending applications. December 23, 2008 (Sanjay Karol), (C)