IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RFA No. 40 of 2007 alongwith RFA No. 41 of 2007, RFA No. 42 of 2007, RFA No. 43 of 2007, RFA No. 44 of 2007 and RFA No. 45 of 2007. Judgment Reserved on : 27.8.2009 Date of Decision : September17 , 2009 RFA No. 40 of 2007 The Land Acquisition Collector Manali and another Appellants Versus Sh. Dola Ram Respondent RFA No. 41 of 2007 The Land Acquisition Collector Manali and others Appellants Versus Smt. Besaru Devi and others Respondents RFA No. 42 of 2007 The Land Acquisition Collector Manali and another Appellants Versus Sh. Chuni Lal and another Respondents RFA No. 43 of 2007 The Land Acquisition Collector Manali and another Appellants Versus Smt. Bhim Dassi Respondent RFA No. 44 of 2007 The Land Acquisition Collector Manali and another Appellants Versus Sh. Bhupender Sharma and others Respondents RFA No. 45 of 2007 The Land Acquisition Collector Manali and another Appellants Versus Sh. Jeet Ram Respondent 2 Coram: 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. J. S. Rana, Asstt. A.G. for the appellants (In all the RFAs) For the respondents : Mr. Vivek Singh Thakur, Advocate, for the respondents in RFA Nos. 40/2007, 41/2007 and 42/2007. Mr. Sunil Mohan Goel, Advocate, for the respondents in RFA Nos. 43/2007, 44/2007 and 45/2007. Sanjay Karol, J. In the present appeals the common award dated 30.11.2006 passed by the Additional District Judge (Fast Track Court), Kullu, H.P. in Reference Petition No. 104 of 2004 RBT Ref. Pet. No. 156/05, titled as Aatu, since deceased through L.R. Sh. Dola Ram versus L.A.C. and another; Reference Petition No. 106/04 RBT Ref. No. 158/05, titled as Hira Lal and others versus L.A.C. and another; Reference Petition No. 107/04 RBT Ref. Pet. No. 159/05, titled as Chuni Lal and another versus L.A.C. and another; Reference Petition No. 108/04 RBT Ref. Pet. No. 160/05, titled as Smt. Bhim Dassi versus L.A.C. and another; Reference Petition No. 109/04 RBT Ref. Pet. No. 161/05, titled as Bhupender Sharma and others versus L.A.C. and another and Reference Petition No. 110/04 RBT Ref. Pet. No. 162/05, titled as Jeet Ram versus L.A.C. and another has been assailed by the State on the ground that the market value 1 Whether reports of Local Papers may be allowed to see the judgment? 3 determined by the Court below, for the acquired land is much on the higher side. The claimants land situated in Mohal Manali Town, Phati Nasogi, Tehsil Manali, H.P. was acquired by the State Government for the public purpose namely “construction of Sewerage Treatment Plant by Irrigation and Public Health Department of H.P. Government”. Notification dated 5.10.1996, issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) was published in the H.P. Rajpatra on 26.10.1996. The Collector passed his award No. 1, dated 24.6.2000 determining the market value of the acquired land. The extent and the market value determined by the Collector is as under: 1. Bagicha Bathal 2-0-10 bighas @ 80,000 per biswa 2. Ropa Doem 2-4-0 bighas @ 70, 000 per biswa 3. Bathal Deom 0-5-0 bighas @ 40,000 per biswa 4. Gair Mumkin Dhek 0-12-0 bighas @ 10,000 per biswa Total: 5-1-10 bighas (Twenty biswas = one bigha) Aggrieved of the same the land owners filed land reference petitions seeking enhancement of the compensation awarded. Based on the pleadings of the parties the Court below framed the following issues: “1. Whether the petitioners have not been paid adequate compensation in respect of the acquired land. If so, what was the market value of the acquired land at the time of notification issues under Sec. 4 of the Land Acquisition Act? OPP 4 2. Whether petitioner in Ref. Pet. No. 107/04 have not been paid compensation adequately qua the acquisition of a 1½ storeyed house? If so, what was its market value? OPP 3. Relief.” Opportunity to lead evidence was afforded to the parties. Appreciating the material on record the Court below came to the conclusion that the market value determined by the Collector was on the lower side and based on the sale deed Ext. PW 4/A, as placed on record by the claimants the market value was determined to be Rs. 1,56,522/- per biswa (Rs. 31,30,440/- per bigha). Same was uniformally awarded to all the claimants regardless of their classification of land. It has been argued by Mr. Vivek Thakur, learned Addl. Advocate General ably assisted by Mr. J. S. Rana, learned Assistant Advocate General for the appellants that the Court below has erred in ignoring sale deeds Ext. RA, Ext. RB and Ext. RC placed on record by the State; There was no evidence of similarity of the acquired land with that of the exemplar sale land hence the Court erred in relying upon them for determining the market value; In any event the Court has not carried out any deductions on the market value determined on the basis of Ext.PW 4/A as keeping in view the location of the acquired land this was absolutely necessary. Per contra Mr. Sunil Mohan Goel and Mr. Vivek Singh, learned counsel for the respondents have supported the impugned award for 5 the reasons stated therein. It is argued that since no development of the acquired land was required to be carried out as such no deductions on any count were necessitated. The land covered by the exemplar sale deed was sufficiently big and the share holding of each claimant in the acquired land being small no deductions were warranted. They have also referred to the following decisions in support of their contentions: Atma Singh (Dead) through LRs. and others versus State of Haryana and another, (2008) 2 SCC 568; Land Acquisition Collector, Mandi versus Smt. Suresh Kumari and others, 2008 (3) Shim. LC 116; L.A.C. and another versus Bhagat Ram and others, Latest HLJ 2007 (HP) 1276; Bhimasha versus Special Land Acquisition Officer and another, (2008) 10 SCC 797; Durgavati versus Nathpa Jhakhri Power Project Corporation and another, Latest HLJ 2008 (HP) 1328 and Padmawati and others versus State of Himachal Pradesh and another, Latest HLJ 2008 (HP) 1417. I have heard learned counsel for the parties and perused the record. In support of their claim the claimants have examined four witnesses namely Sh. Vinod Kumar Mishra (PW-1), Sh. Jeet Ram (PW-2), Sh. Malkiat Singh (PW-3) and Sh. Jindu Ram (PW-4). Admittedly no witness was examined by the respondent-State. Record further reveals that the State has simply placed on record sale deed dated 11.4.1996 Ext. RA, sale deed dated 25.3.1996 Ext. 6 RB and sale deed dated 6.7.1996 Ext. RC. The same were simply tendered in evidence by their learned counsel on 12.8.2005. The Court below did not consider the same for the simple reason that neither seller, the attesting witnesses, the scribe nor the purchaser was examined. To that extent the reasoning adopted by the Court below is erroneous. On this count the sale deeds could not have been ignored by the Court below keeping in view the decision of the Apex Court in Cement Corpn. of India Ltd. versus Purya and others, (2004) 8 SCC 270. The provisions of Section 51-A of the Act are abundantly clear and the State was well within its rights to have placed on record the same for consideration. It being a different matter though, that without their being any material on record to prove the similarity of use, size, nature and potential of the acquired land with that of the exemplar sale land they could not have been made the basis for determining the market value of the acquired land. In the present circumstances the sale deeds cannot be made basis for determining the market value as there is nothing on record to prove the same. In so far as the evidence led by the claimants is concerned, statements of Sh. Vinod Kumar (PW-1) and Sh. Jindu Ram (PW-4) are relevant. These witnesses have sufficiently proved the sale transaction which took place in terms of sale deed Ext. PW 4/A whereby one bigha and three and a half biswas of land stood sold to the owners of one Akhnoor Hotel for a sum of Rs. 36 lacs on 7 26.8.1995. In terms of the said sale transaction the market value of the acquired land comes to Rs. 1,56,522/- per biswa. Sale transaction Ext.P-4 pertains to the sale of land by one Sh. Sonam Tashi to Kangra Central Co-operative Bank. Market value in terms of which comes to Rs. 1,75,000/- per biswa. At the time of hearing learned counsel for the claimants stated that sale deed Ext.P-4/A can be considered for determining the acquired land. The genuineness of the sale transaction Ext. PW 4/A cannot be disputed for the reason that its seller Sh. Jindu Ram (PW-4) has categorically deposed that he has received the entire sale consideration as reflected in the sale deed and that the land was sold and purchased by the parties voluntarily. This statement goes uncontroverted and unrebutted. PW-4 is the Nambardar of the Halka in question. According to him the exemplar land was purchased for building a hotel. The exemplar sale land where hotel Akhnoor is constructed is on the Kullu Manali Highway and is at a distance of half a kilometer from hotel Kneilworth towads Kullu. There are other hotels and a petrol pump in close vicinity. In and around the acquired land, situated below Manali Bazar, there are big hotels. The Court complex and police station are also adjacent to the same. The acquired land used for agricultural purposes has a small nala (drain) towards the east and hotel Kneiworth and Judicial Complex which are on the main Manali Highway are in the front. On the Southern side there is 8 seasonal Nala and road of Nagar Panchayat leading towards Model Town and the police station is on the other side towards Kullu. That the acquired land is situated in Manali town is evident from the Statements of claimant Sh. Vinod Kumar Mishra (PW-1) and Nambardar of the area Sh. Jindu Ram (PW-4). It has come on record through their statements that Manali is a tourist place where tourists from all over the country come and there are approximately 400 hotels in and around Manali Town and tourists going to Rohtang Pass, Keylong, Leh, Laddakh have to pass through the town. The land is scarce and not easily available. Even though the land was used as an orchard at the time of initiation of acquisition proceedings, but however, it had been kept by the claimants for setting up of a hotel and in any event had great potential of being put to commercial use and was having great commercial value. The location of the acquired land also stands sufficiently explained by these two witnesses. It has come on record that the acquired land is situated behind hotel Kneilworth which is situated on the main national highway and is adjacent to the police station and the judicial Court complex. That there are other hotels also situated in and around the acquired land is evidently clear from their statements. The judicial Court complex and police station are also at a distance of 10 to 15 minutes walking distance from the acquired land which is also having a drain on its Southern side. 9 Since the land sold in terms of exemplar sale deed Ext. PW4/A is situated on the national highway, the acquired land may not be commanding the same commercial value. The exemplar sold land being situated in the heart of the town has a better location than the acquired land which is situated on the end of Manali town towards Kullu. Hence it cannot be said that the acquired land was having the same potential and value. This however does not mean that the acquired land by no means cannot be compared with the exemplar sale land. Evidently the land did have potential for being put to commercial use even though certain locational disadvantages were attached with it. It is located behind commercial establishments situated on the national highway and has a drain on one side. The exemplar sale land Ext. PW 4/A can be relied upon, being more proximate to the time of the initiation of the acquisition proceedings to some extent being comparable with the acquired land. While passing the award the Collector has also admitted the fact that the sale price in reality is very high and the acquired land has potential for being put to commercial use and the land carried more market value than the average sale price. The Collector while passing the award has observed as under: “The record of mutations revealed that the sale price of land in Phati Nasogi varied from Rs. Ten Thousand per biswa to Rs. Sixty Thousand per biswa. Local inquiry in the case of the Kangra Central Co- 10 operative Bank Ltd. showed that the land in question was situated in the heart of the Manali Town near bus stand and in the case of mutation No. 1431 the land was situated on National Highway near Octroi Post and was purchased by a Hotel Company. On the other hand the land being acquired was situated away from the National Highway and also from the centre of the Town though it was within the boundaries of Manali Town. It being in the Town, however, commended good price but not equal to the two sale deeds cited by the landowners. Notwithstanding, considering the location of land and also considering the fact that the sale price in reality is very high and also in view of tourism and commercial potential which is not reflected in the sale deeds, the land carried more market value than the average sale price. Considering all factors I am inclined to decide the market value of land in question, classification wise, as follows:- 1. Bathal Bagicha Rs. 80,000 per biswa i.e. Rs. 16 lac per bigha. 2. Ropa Deom Rs. 70,000 per biswa i.e. Rs. 14 lac per bigha. 3. Bathal Deom Rs. 40,000 per biswa i.e. Rs. 8 lac per bigha. 4. Gair Mumkin Dhek Rs. 10,000 per biswa i.e. Rs. 1.20 per bigha” The Collector himself has observed that the market value of the acquired land was quite high hence sale deed in question can be made basis for determining the market value. 11 It is true that the land sold in terms of exemplar sale deed was big enough and the share holding of each claimant is sufficiently small and therefore no deductions with regard to the size of the plot are required to be carried out. It is also true, as is borne out from the record that the acquired land has access by road hence no development for construction of road etc. was to be carried out. It has come on record that the acquired land was in the nature of a field used for horticulture purposes with a steep cliff on its rear side, forming a natural boundary wall, hence no developmental activity was required to be carried out before putting it to public use, hence no deductions on said count are required to be carried out. However in my considered view the deductions are necessitated keeping in view the locational disadvantages attached to the acquired land, being away from the national highway and behind the commercial centers situated on the main road. The amount of compensation payable to the land owner for acquisition of its land has to be determined by taking into consideration the market value of the land on the date of publication of the Notification in the Official Gazette. The market value means the price that a willing purchaser would pay to the willing seller for a property having due regard to its existing condition, with all its existing advantages and its potential possibilities when laid out in the most advantageous manner excluding disadvantages attached to the property. 12 The Apex Court in Atma Singh (Dead) through LRs. and others versus State of Haryana and another, (2008) 2 SCC 568 has held that: “ The market value is the price that a willing purchaser would pay to a willing seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities when led out in most advantageous manner excluding any advantage due to carrying out of the scheme for which the property is compulsorily acquired. In considering market value disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded. The question whether a land has potential value or not, is primarily one of fact depending upon its condition, situation, user to which it is put or is reasonably capable of being put and proximity to residential, commercial or industrial areas or institutions. The existing amenities like water, electricity, possibility of their further extension, whether near about town is developing or has prospect of development have to be taken into consideration.” The market value of the another exemplar sale land sold in terms of sale deed Ext. P-4 comes to Rs. 1,75,000/- per biswa. It has come on record that the land sold in terms of the said exemplar sale deed by Sonam Tashi is of the same kind as that of the acquired land. But however during the Course of hearing Mr. Sunil Mohan Goel, learned counsel stated that he is seeking reliance upon sale deed Ext. PW 4/A. 13 The Court below, in my considered view has erred in not deducting any amount for the locational disadvantages attached to the acquired land which in the present case should be to the extent of 25%. Hence the market value of the acquired land can safely be held to be Rs. 1,56,522/- less 25% = Rs. 1,56,522 – Rs. 39,130.50 = Rs. 1,17,391.50/- per biswa. The principles laid down in the decisions mentioned above, for carrying out necessary deductions have been considered while arriving at the market value. Reliance on Smt. Suresh Kumari (supra) to the extent that it lays down the proposition that no deductions is required to be carried out for carrying out development activity, to say the least in the facts is misconceived. The deductions to be carried out are not on the basis of any developmental activity to be carried out but due to locational and inheritant disadvantages attached to the acquired land. Reliance on Bhagat Ram (supra) is not relevant as no deductions with regard to the exemplar sale land being small parcel of land is being carried out. Bhimasha (supra) lays down the principle that the Court has power to award compensation higher than what is claimed for by the claimants in the reference petition if there is sufficient material on record to prove the same. 14 For the aforesaid reasons the grounds for interference is made out in the present appeals. The Court below erred in not carrying out deductions as noticed hereinabove. The claimants are held entitled to compensation on the rates determined in the present appeals along with all statutory payments in accordance with law, including the ratio of law laid down by the Apex Court in Sunder versus Union of India, 2001 (7) SCC 211. The appeals are allowed and the impugned award is modified accordingly. (Sanjay Karol), Judge. September 17 , 2009 (PK)