--------------------------------------------------------------------------------------- Whether reporters of the Local papers are allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No. 459 of 2001. with Cross Objection No. 195 of 2002. Judgment reserved on :22.6.2011. Decided on: 5th August, 2011. H.P. Housing Board. …… Appellants/ Non-Objectors. Versus Kaushalya Devi and another. …….Respondents/ Cross- Objectors. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? For the appellant/ : Mr. Bhupender Gupta, Sr. Advocate with Non-Objector. Mr. J.R. Thakur & Mr.Neeraj Gupta, Advocates. For the respondent/ : Mr. Dibender Ghosh, Advocate, vice Cross-Objector. Mr.C.P.Sood, Advocate for respondent No.1. Mr. A.K.Bansal, Addl.Advocate General, for Respondent No.2-NonObjector. Surinder Singh, J: The appellant-Board is in appeal against the award passed by the Reference Court in Land Reference No.31-S/4 of 1995 decided on 3.9.2001, whereby the petitioner is held entitled to the enhanced amount of compensation @ - 2 - `51,787/- per biswa in addition to the solatium and other statutory interest, with respect to the acquired land. The respondent-claimant has also filed the Cross Objections, C.O.No.195 of 2002, for claiming the higher compensation @ `73,995.95 paise per biswa without deducting any amount, on account of development of the land. 2. The brief facts giving rise to the present appeal can be stated thus. The appellant acquired the land alongwith building comprised in Khasra No.249/29 and 251/92, measuring 3 biswa, situated in Mauja Kasumpti (Junga), Tehsil and District Shimla, H.P., hereinafter referred to as “the acquired land”, for the construction of the Housing Board Colony by the appellant, as such, a Notification under Section 4 of the Land Acquisition Act, in short “the Act” was published in H.P.Rajpatra on 19.9.1992 and in the local newspapers i.e. in Jansatta on 2.9.1992 and in The Tribune on 4.4.1992. The State Government also issued Notifications under Sections 6 and 7 of the Act declaring the said acquisition for the public purpose. The said declaration was also published in H.P. Rajpatra on 27.2.1993 and also in two local dailies having largest circulation in the area. The area under acquisition was also got demarcated through Tehsildar (Urban) Shimla. No discrepancy area was found - 3 - therein, however, in two biswa of the acquired land there was Gair-mumkin Kothi standing which depicted by Khasra No.249/29 and over one biwsa bearing khasra No.251/33, a Gair-mumkin bowli is situated in village Kasumpti-Junga, District Shimla. Notices were issued to the land owners, recorded in the revenue record, as per provisions of Section 9 of the Act for hearing their claims and objections, if any. The claimant did not object for its acquisition, but claimed latest market price of the land prevailing in the locality. The tenants of the building, namely Kahan Singh, Suneharu and Tilkoo and also filed their objections before the Land Acquisition Collector, claiming compensation. Since they failed to place any documentary proof to substantiate their claim, as such nothing was awarded to them. The learned Land Acquisition Collector took the available land transaction pertaining to the land relevant in the context of the proposed land to assess its value at the time of Notification under Section 4 of the Act i.e. 20.9.1992 on the transaction preceding one year pertaining to same revenue estate, i.e., Kasumpti-Junga, District Shimla to the Notification aforesaid. He assessed the value of the Lehri Awal land @ `73,995.95 paise and Gair-mumkin @ `15,076.92 paise per biswa. These rates were got approved from the - 4 - District Collector. Learned Land Acquisition Collector also got assessed the existing structure on the acquired land, which came out to be to the tune of `26,890/-, which was accepted, as such, the Land Acquisition Collector vide his award passed in Case No.3/92 decided on 1.3.1995, assessed the market value of the land as under:- (i) Market value of the land : 45,231.00 (ii) Market value of House/ : 26,890.00 Structure (iii) Solatium @ 30% : 21,636.30 (iv) Interest @ 12% from : 20,915.00 19.8.92 to 18.2.95(29 months) 1,14,672.90 Say Rupees 1,14,672/-. 3. Since the value of the award crossed the ceiling of Rs.1 lac, therefore, it was sent to the Government through the District Collector, for its approval. The Government approved the above rates, as such the award to the above extent was passed based upon the classification of land considering the acquired land of the lowest category. 4. The respondent-claimant did not feel satisfied, as such, filed the Reference Petition under Section 18 of the Act, which was sent for its determination to the Learned District Judge, in turn, it was sent to learned Additional District Judge, for its determination in accordance with law. - 5 - 5. The respondent-claimant in his Reference Petition disputed the adequacy of the award, mainly on the ground that the value of the land should have been assessed and awarded @ `73,995.95 paise at a uniform rate, for higher value of land irrespective of its classification, whereas the appellant-Board supported the award passed by Land Acquisition Collector. 6. On the pleadings of the parties, the learned Reference Court framed the following issues:- 1. Whether the petitioner is entitled to the enhanced compensation, as alleged, if so, to what extent? …OPP. 2. Relief. 7. Though the petitioner did not step into witness box, but tendered in evidence the copy of award dated 30.10.1997 Ext.PX passed by the reference court with respect to the land acquired and a copy of judgment passed in RFA No.1 of 1988 with connected matters Ext.PY. 8. Contra, the appellants examined RW1 Chet Ram, Kanungo. He produced in evidence the copy of sale deeds Ext.RW1/A, B and C for justifying the award of Collector and contended that the claimants did not step into witness box, therefore, adverse inference is to be drawn. 9. After the scrutiny of the evidence on record, learned Reference Court held that an adverse inference against a - 6 - person or a party, who did not enter into the witness box cannot be drawn if other evidence amply proves the point in issue. It was further held that the Land Acquisition Collector assessed the different compensation for the different types of land, as per his award and the land in question has been acquired for the construction of housing colony, the construction of which was done by the respondent-Board and also on the basis of Ext.PX and PY aforesaid whereby the principles which governs the award of the consideration considered the various aspects and came to the conclusion that a flat rate was required to be given to the claimants irrespective of the classification of land. Taking a cue from the same judgments and also another judgment of the Supreme Court, Land Acquisition Officer Revenue Division, Chittor v. L. Kamalamma (Smt.) Dead by LRs and others K. Krishnamachari and others (1998) 2 SCC 385 and also from the judicial precedents of this Court rendered in Lalit Kumar and another versus State of HP 1998(1) Shim LC 41 assessed the market price of the land in question at the rate of `73,995.95 paise per bigha for Lehri land on which the deduction to the extent of 30% was applied and awarded `51,787/- per biswa. According to the claimants, this deduction of 30% was not permissible - 7 - keeping in view the judgment passed vide Ext.PY by this Court whereby the value of land was assessed @ `1,75,000/- per biswa pertaining to Kasumpti which was notified in the year 1982 and the impugned land is not too far from that land having potentiality. 10. Shri Bhupender Gupta, learned Senior Advocate, duly instructed by Shri J.R. Thakur and Shri Neeraj Gupta, Advocates vehemently argued that the learned Reference Court erred in holding that all kinds of land should be granted compensation at the same rate. According to him, the land acquired was admittedly Gair-mumkin land, the market value of the construction was got assessed and paid. The assessment of the Land Acquisition Collector with regard to Lehri Awal was not even otherwise necessary and further that the claimant himself did not enter into the witness box to prove its case, but only tendered the copy of the award in support of the claim and that the Reference Court did not deduct the amount of `15,076.92 paise per biswa awarded by the Land Acquisition Collector, therefore, the impugned award is unsustainable. 11. On the other hand, Shri Dibender Ghosh, learned counsel appearing on behalf of respondent No.1-Objector submitted that the learned Reference Court should have - 8 - awarded more compensation without deducting any amount on account of development of the land and the findings contrary to it are wrong and illegal. He also urged that the impugned land has all the facilities and characteristics as that of the land acquired involved in Ext.PY located in the same revenue estate which was acquired a decade ago, therefore, the learned Reference Court was not justified in applying deduction to the extent of 30% on the assessed value. 12. I have given my thoughtful consideration to the rival contentions of the parties and have scanned the entire record. 13. As already stated above, the land in question has been acquired for the construction of the housing colony by the appellant-Board. The award dated 30.10.1997 Ext.PX passed by the learned Reference Court was enhanced in RFA No.1 of 1998 (Ext.PY), by this Court from `1 lac to `1,75,000/- per bigha with respect to the land situated at three villages namely Patti Rihana (I) and (II) and Kasumpti- Junga which was acquired by the appellant-Board to develop the same as house sites in accordance with the interim development plan prepared by the Shimla Development Authority, constituted under the HP Town and - 9 - Country Planning Act, 1997. The Notification under Section 4 of the Act was issued in February, 1980. The said land is located nearer the HP Secretariat and B.C.S School, as observed in the said judgment by this Court. 14. In the present case, the land in question is also acquired for establishing the housing colony by the appellant-Board which is nearer to the B.C.S. and the notification was issued in the year 1992 qua this land, i.e., 10 years after the land involved in the judgment Ext.PY. The area was fast developing. Besides this, location as well as topography of the acquired land its potentiality of future development, are some of the other illustrative factors to be kept in view while assessing the market price. Further taking judicial notice of the prices of the land in and around especially in the area which is fast-developing and nearer to the HP Secretariat, B.S.C. and other State capital institutions in my opinion certainly requires due consideration. 15. Section 23 (1) of the Act enumerates of the factors which are taken note of by the Courts while assessing compensation of the land, similarly Section 24 of the Act indicates the matter to be neglected in determining such compensation. - 10 - 16. The sale instances put-forth by the respondents in their evidence do not state the distance of the land from the acquired area and also its nature. The judgment of this Court (Ext.PY) shows that in the year 1980 the value of the adjacent land was much higher than awarded by the Land Acquisition Collector. The potentiality of the land under acquisition can well be imagined that surrounding areas were likely to be developed for commercial purposes. 17. Looking at the cumulative effect of all the factors, the value of the land, was rightly assessed by the learned Reference Court to the tune of ` 73,995.95 paise on the basis of the highest value of the land assessed by the Land Acquisition Collector at flat rate over which no deduction should have been allowed for the reasons the area in question is only three Biswas and the surrounding area has already been developed by the appellant-Board to establish a housing colony. 18. Therefore, for the above stated reason the appeal filed by the appellant-Board is hereby dismissed whereas the Cross- Objections are allowed holding that the learned Reference Court rightly assessed the market value of the land irrespective of the classification of the land to the tune of `73,995.95 paise or to say `73,995/- per biswa, i.e., `58,995/- - 11 - over and above the market value of the land assessed by the Land Acquisition Collector, over which no deduction should have been allowed. 19. Thus, the respondents-claimant shall be entitled for the solutium and the statutory interest on the enhanced amount, in accordance with law. 20. The appeal and the Cross-Objections stand disposed of in above terms. (Surinder Singh ) Judge August 5, 2011 (Pds)