IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No. 237 of 2008 with RFA Nos. 238, 239, 240 & 241 of 2008. Judgment reserved on : March 31, 2009 Date of Decision : April 21, 2009 RFA No. 237 of 2008 LAC & Anr. …Appellants. Versus: Krishan Lal & others …Respondents. RFA No. 238 of 2008 LAC & Anr. …Appellants. Versus: Jai Dayal & others …Respondents. RFA No. 239 of 2008 LAC & Anr. …Appellants. Versus: Tulsi Ram & Anr. …Respondents. RFA No. 240 of 2008 LAC & Anr. …Appellants. Versus: Rameshwar Dass …Respondent. RFA No. 241 of 2008 LAC & Anr. …Appellants. Versus: Parshotam & Anr. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the appellants : Mr. Vivek Thakur, Addl. A.G. with Mr. Anil Jaswal, Dy.A.G. For the respondents : Ms. Uma Manta, Advocate. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 SANJAY KAROL, JUDGE. The present appeals arise out of the impugned Award dated 28.5.2008 passed by the District Judge, Shimla, H.P. in Land Reference Petition No. 7-S/4 of 2005, titled as Tulsi Ram & Anr. v. Land Acquisition Collector & Anr., Land Reference Petition No. 8-S/4 of 2005, titled as Parshotam & Anr. v. Land Acquisition Collector & Anr., Land Reference Petition No. 9-S/4 of 2005, titled as Rameshwar Dass v. Land Acquisition Collector & Anr., Land Reference Petition No. 10-S/4 of 2005, titled as Krishan Lal & Ors. v. Land Acquisition Collector & Anr. and Land Reference Petition No. 19-S/4 of 2005, titled as Jai Dayal & Ors. v. Land Acquisition Collector & Anr. The land reference petitions were consolidated and evidence was recorded in Land Reference Petition No. 7-S/4 of 2005 and decided by a common award. In the impugned award, reference has been made to village Thana as Chak Thana and village Thana Bag as Chak Thana Bag. Herein Chak Thana is referred to as Village Thana and Chak Thana Bag is referred to as Village Thana Bag. For the public purpose, namely, ‘construction of Thana-Daroti-Tikkar Road, the claimants land situate in village Thana, Sub Tehsil Tikkar, Tehsil Rohru, Distt. Shimla, was acquired by the State. The possession of the land was taken in the year 1986-88 but, however, Notification issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred 3 to as ‘the Act’), was published in the H.P. Rajpatra on 18.2.1998. The Collector’s Award No. 1 (File No. SML-18/88), under Section 11 of the Act was published on 31.1.2002. In term of the award, total land measuring 1.79.25 hects. was acquired. Major portion of the land is of superior quality i.e. Bagicha Bakhal Awal, Bakhal Awal and Bakhal Doyam. The Collector, Land Acquisition awarded different rates for different classifications of land ranging form Rs.2,554.20 paise to Rs.25,542.60 paise per bigha. For the superior quality of land, the Collector awarded rates between Rs.13,793/- to Rs.25,542/- per bigha. The claimants felt aggrieved and, as such, filed Land Reference Petition under Section 18 of the Act. In the land reference petitions, following issues were framed:- 1. Whether the market value of the land was not properly assessed and, if so, what was the market value at the time of acquisition, as alleged? ……OPP 2. Whether the remaining un-acquired land of the petitioners was rendered useless as alleged? …….OPP 3. Whether the market value of the fruit bearing trees was not properly assessed, if so, what was the market value thereof, as alleged? ….OPP Opportunity to adduce evidence was afforded to the parties. Based on the material on record (oral and documentary), the Court below came to the conclusion that the 4 claimants had been able to sufficiently prove that the market value of the acquired land, on the basis of the rates awarded by the Collector, was much on the lower side and the claimants were entitled to compensation @ Rs.11400/- per biswa or Rs.11,400 x 20 = Rs.2,28,000/- per bigha. The market value was determined on the basis of the exemplar Sale Deeds (Ext.PW-2/A to Ext.PW-2/E) proved on record by the claimants. The other issues were decided in favour of the State. Mr. Vivek Thakur, learned Addl. Advocate General assisted by Mr. Anil Jaswal, Dy. Advocate General, assailed the award on the ground that the compensation awarded is much on the higher side and the exemplar Sale Deeds (Ext.PW-2/A to Ext.PW-2/E) of village Khangta could not have been taken into account while determining the market value of the acquired land, particularly when the exemplar Sale Deed (Ext.PW-2/A) pertaining to the very same village Thana was available on record. Ms. Uma Manta, learned counsel appearing for the respondents has supported the award for the reasons set out therein. In order to appreciate the respective contentions of the parties, the evidence led by them needs to be examined. From the record, it cannot be disputed that the acquired land is situated in Village Thana. Shri Sant Ram Rohal (PW-3) has proved on record letter (Ext.PW-3/A) written by the Sub 5 Divisional Officer (C) to the Deputy Commissioner, from which it is evident that prior to the initiation of the acquisition proceedings, Village Thana and Village Thana Bag constituted a single by the name of village Thana. It was only during the recent settlement that these two villages were bifurcated. Shri Anil Kumar (RW-1) sole witness examined by the State has proved on record site plan (Ext.RW-1/A) to rebut the claimants contentions that village Thana Bag is at a distance of 9 to 10 kms. from Village Thana and village Tikkar is nearer from village Thana than from village Thana Bag. Perusal of site plan (Ext.RW-1/A) depicts that even though the distance by road between village Thana and village Tikkar is 7 kms. but, however, on foot it is just about 10 minutes walking distance as stands admitted by RW-1 himself. From the site plan, it is also evident that in between village Thana and village Tikkar, lies village Khangta. Villages Thana, Khangta and Tikkar in same line and at eqvi distance, whereas village Thana Bag is at a quite distance from villages Thana, Khangta and Tikkar. RW-1 has admitted that the boundaries of village Khangta and village Thana are adjoining to each other and that headquarters of Sub Tehsil Tikkar is adjacent to village Khangta which is adjoining to village Thana. Village Thana is connected and surrounded by road from all sides, which is not the position in the case of village Thana Bag. It is admitted that village Thana 6 Bag is not well connected by road and the goods are carried on mules. Village Thana Bag is at a height of more than 10,000 feet, whereas the height of village Thana is approx. 5500 feet. Village Thana and Village Thana Bag constitute two separate revenue estates and value of land of Village Thana is higher than that of land in Village Thana Bag as village Thana is nearer to village Tikkar. Thus, it is the respondents own case that villages Thana and Thana Bag are two different revenue estates and village Thana is much closure to village Tikkar, where the headquarters of Sub Tehsil Tikkar are situated. It is also evident that in between villages Thana and Tikkar lies village Khangta and the boundaries of the said villages are adjoining to each other. While determining the market value of the acquired land, the Collector took into account the annual average market yield for the year 1996-97 of village Thana Bag. Why the same was made basis is not evident from the record. In this background, evidence led by the claimants needs to be examined. Claimants S/Shri Jai Kishan (PW-6), Rameshwar Dass (PW-8), Krishan Lal (PW-9), Narayan Chand (PW-10) and Rameshwar Dass (PW-11) as General Power of Attorney (GPA) in one voice have stated that the possession of the acquired land was taken over in the year 1988 and the annual average value of village Thana Bag could not have been formed the basis for determining the market value of village Thana due to the various 7 factors, including geographical location, population, quality/ potentiality of land and other infrastructural developments and facilities available at the site. In one voice they have deposed that their land is fertile and put to agriculture/Horticulture use. The area is densely populated and there are facilities like Senior Sec.School, PWD, IPH and other Governmental offices in Tehsil Tikkar. They have further deposed that Village Thana Bag could not be formed basis of comparison as it is at a height of 9000 to 10000 feet, is scarcely populated and has got no agricultural land. Further, it is closer to village Kotkhai than Village Tikkar. Most of the time, it is covered by snow and is not well connected by road. These witnesses have also deposed that village Khangta is just adjoining to their village Thana. Site Plan (Ext.RW-1/A) also evidences the said fact. Shri Suresh Kumar (PW-2) has proved on record Sale Deeds Ext.PW-2/A to Ext.PW-2/E. The chart depicting the particulars of the sale transactions is as under:- Exhibit Date of transaction Area Quality Amount Ext.PW-2/A 20.3.1997 2 biswas Banjar Kadeem Rs.7000/- per biswa (Total Rs.14000/- Ext.PW-2/B 18.12.1997 Total land 0-23-75 hects. (1/6th share i.e. 10.5 Bagicha Bakhal Awal Rs.13,427/- per biswa (Total Rs.1,40,983.83) 8 biswa) Ext.PW-2/C 18.12.1997 Total land 0-23-75 hects. (1/6th share i.e. 10.5 biswa) Bagicha Bakhal Awal Rs.13,427/- per biswa (Total Rs.1,40,983.83) Ext.PW-2/D 18.12.1997 Total land 0-23-75 hects. (1/6th share i.e. 10.5 biswa) Bagicha Bakhal Awal Rs.13,427/- per biswa (Total Rs.1,40,983.83) Ext.PW-2/E 18.12.1997 Total land 0-23-75 hects. (1/6th share i.e. 10.5 biswa) Bagicha Bakhal Awal Rs.13,427/- per biswa (Total Rs.1,40,983.83) Shri Durga Dass (PW-5) has stated that land pertaining to exemplar Sale Deed (Ext.PW-2/A) was bought by him for the purposes of setting-up of store but, however, the land was of lowest category i.e. Banjar. Shri Ram Lok (PW-7) has proved on record Sale Deed (Ext.PW-2/B), whereby land was sold to the Department of Education, State of H.P.. Exemplar Sale Deeds (Ext.PW-2/B to Ext.PW-2/E) executed by different share holders pertain to the same land situated in village Khangta. It has come on record through the statements of the claimants that the land of village Khangta and village Thana is same and similar. It is cultivable and fertile. Claimants 9 statements with regard to the category/classification of the land and it being put to agriculture/horticulture use have not been disputed. It is so evident from their line of cross-examination. The exemplar Sale Deed (Ext.PW-2/A) is of Banjar category land of village Thana. It is the lowest quality of land as nothing is cultivable thereupon. Since the appellants land is of superior quality, therefore, the value of the land, which is fertile and cultivable and has an orchard has to be greater than the value at which the exemplar Sale Deed (Ext.PW-2/A) was sold in March 1997. The acquisition proceedings commenced in February 1998. Considering that there has been an overall trend of increase in the land prices, the value of land is bound to have gone up. The claimants have stated that the market value of their land is in fact more than Rs.14000 to Rs.15000 per biswa or Rs.2,80,000/- to Rs.3,00,000/- per bigha. The Court below has recorded that the claimants land is of high category i.e. Bakhal Awal, Bagicha Bakhal and Kiar Doyam, which evidently stands proved through revenue records Ext.PW-8/A, Ext.PW-9/A, Ext.PW-9/B & Ext.PW-10/A. Even in the award, the Collector has awarded Rs.2,554.20 per bigha for the lowest category of land i.e. Karali Doyam and Rs.25,542.60 per bigha for the best category of land i.e. Kiar Doyam. For the aforesaid reasons, some increase is necessarily required to be made on the market value of the exemplar Sale Deed Ext.PW-2/A. 10 The Court below, after taking into account all factors have determined the market value to be Rs.11,400/- per biswa, or Rs.2,28,000/- per bigha. The Court below has given an increase of 62.83%. In my considered view, there is nothing wrong with the same. Considering the aforesaid factors the same is justifiable. The entire land stands acquired for the purposes of construction of road. No development was required to be carried out. This Court in Lalit Kumar v. State of H.P (1998) 1 Shim.L.C. 41 has already held that the market value is to be uniformly applied for all categories of land if the acquisition is for the construction of road. Looking it from another angle, claimants have proved on record Sale Deeds (Ext.PW-2/B to Ext.PW-2/E). They pertain to adjoining village Khangta and are proximate to the time of the initiation of the acquisition proceedings. As has been noticed hereinabove, claimants have proved the similarity of potential, nature, classification and use of the land of both villages Khangta and Chak Thana. The average sale price in terms of exemplar Sale Deeds (Ext.PW-2/B to Ext.PW-2/E) comes to approx. Rs.13,427/- per biswa or Rs.2,68,540/- per bigha. Even if they were to be considered and made basis for determining the market value of the acquired land, the claimants would be entitled to higher compensation than what stands awarded by the Court below. The Court below could have considered the 11 same as there was evidence of similarity on record. These sale deeds were more proximate to the time of acquisition proceedings. It is also to be noticed that it stands proved from the statement of Shri Durga Chand (PW-4) that the possession of the land was actually taken over by the Government in the year 1988. The acquisition proceedings, however, commenced only in the year 1998. The road stood constructed as on the date of acquisition of the land. The area was well connected and it had all facilities including telephone, telecommunication, electricity and water etc. The land was sold to the Government and, therefore, it cannot be said that the said exemplar Sale Deeds were executed only to create an evidence to inflate the market value to claim higher compensation based on fictitious sale transaction. The Court below has correctly appreciated the material. There is no perversity, illegality or irregularity in the award and the present appeals are accordingly dismissed. (Sanjay Karol), Judge. April 21, 2009. (rana)