IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No. 129 of 2006 with RFA No.103 of 2006 Date of Decision : June 22, 2009 RFA No. 129 of 2006 State of HP through Secretary (PWD) & Ors. …Appellants Versus: Rajinder Singh Chauhan …Respondent RFA No. 103 of 2006 Rajinder Singh Chauhan …Appellant Versus: State of HP through Secretary (PWD) & Ors. …Respondents Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting? Yes RFA No. 129 of 2006 For the appellants: Mr. R. K. Bawa, A. G. with Mr. Vivek Thakur, Addl.A.G. & Mr. J.S.Rana, Asstt. A.G. For the respondent : Mr. G.D. Verma, Sr. Advocate with Mr. B. C. Verma, Advocate. RFA No. 103 of 2006 For the appellant : Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocate. For the respondents: Mr. R. K. Bawa, A. G. with Mr. Vivek Thakur, Addl.A.G. & Mr. J.S.Rana, Asstt. A.G. 2 Sanjay Karol, J. (Oral) In the present appeals the State as also the claimants have assailed the impugned award dated 22.11.2005 passed by the Additional District Judge, Shimla, H.P. in Land Reference No. 1-S/4 of 2002 titled as Rajinder Singh Chauhan vs. State of H.P. & Ors. The Court below has determined the market value of the acquired land and awarded different amounts of compensation with respect to different categories of land. For the public purpose, namely, ‘construction of Theog-Kotkhai-Hatkoti road, the State acquired the claimants land situated in village Badraina, Tehsil Kotkhai, District Shimla, H.P. The total acquired land is 2-2-0 bighas (approximately 2200 sq. yards). Notification intending to acquire the land, issued on 10.2.1997 under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as ’the Act’), was published in the H.P. Rajpatra on 1.3.1997. The Collector, Land Acquisition, passed his award being No.PW-26/96 on 15.3.1999. Since no sale transactions took place in village Badraina within one year prior to the date of issuance of Notification under Section 4 of the Act, therefore, the average price of land of village Chaunthala was taken by the Collector for determining the market value of the acquired land. In terms of the Collector’s award, the market value was determined as under:- 3 Classification of land Rate per bigha 1. Bakhal Awal Rs.20,000.00 2. Karali Awal Rs.11,660.00 3. Karali Doyam Rs. 5,000.00 4. Banjar Kadeem Rs. 5,000.00 . Aggrieved by the same, the claimants filed land reference petition under Section 18 of the Act, claiming compensation @ Rs.16 lacs per bigha on the ground that the Collector, without assigning any reason determined the market value of the acquired land by wrongly taking into account the annual average price pertaining to village Chaunthala, as maintained by the revenue authorities, which is a distant village and ignored the market value of the land of the adjacent village Gehar. Based on the pleadings of the parties, the Court below framed the following issues:- 1. Whether the petitioner is entitled for the enhancement of the compensation in respect of the land acquired as alleged? ……OPP 2. Relief. Based on the material on record and evidence led by the parties, the Court below determined the market value of the acquired land and awarded compensation as under:- “For the reasons recorded for deciding the aforesaid issues, the petitioners are entitled to compensation for the acquire land i.e. bagicha Bakhal and Bagicha Karali Awal at the rate of Rs.1,00,000/- 4 per bigha and Bakhal Awal at the rate of Rs.50,000/- per bigha. The petitioner further shall be entitled to:- a) Compulsory acquisition charges at the rate of 30% on the market value as assessed above; b) Additional compulsory acquisition charges at the rate of 12% per annum on the market value as assessed above for the period on and from the date of publication of notification under Section 4 of the Act 1894, that is 1.3.1997 to the date of Collector’s award or the date of taking of possession of the acquired land whichever is earlier; c) Interest at the rate of 9% per annum on the enhanced amount from the date of notification i.e 1.3.1997 for one year of taking of possession of the land acquired till date. d) Interest at the rate of 15% per annum on the enhanced amount from the date of expiry of the period of one year of the date of notification i.e from 1.3.1998 till the date of payment of the amount in the court.” While determining the market value, the Court below took into account the average market price maintained by the revenue authorities (Ext.PX) as proved on record by the witnesses of the State. Mr. G. D. Verma, learned Senior Counsel has assailed the award on the grounds; (i) that the compensation awarded is much on the lower side inasmuch as the sale transactions Ext.PW-2/A and Ext.PW-3/A were wrongly ignored by the Court below while determining the compensation due and payable to the claimants for the acquired land; (ii) the Court erred in not awarding uniform compensation with respect to the entire acquired land regardless of classification and categories. 5 Per contra, Mr. Vivek Thakur, learned Addl. Advocate General has assailed the award for the reasons that the Court wrongly relied upon the market value of village Gehar while enhancing compensation for the acquired land. This is evident from the site plan Ext. DW-1/A proved on record by DW-1. I have heard learned counsel for the parties and also perused the record. In support of their claim, the claimants examined S/Shri Rajinder Singh Chauhan (PW-1), Roshan Lal (PW-2), Bir Singh (PW-3) and in rebuttal the respondents-State examined Shri Surat Ram (RW-1) Patwari of the concerned Patwar Circle. Undisputedly, the possession of the acquired land was actually taken over by the State, much prior to the initiation of the instant acquisition proceedings. It is an admitted position that the claimants had to file Civil Writ Petition No. 937/1996 and in terms of orders dated 4.10.1996, this Court had directed initiation of the acquisition proceedings in accordance with law. According to PW-1, the possession of the land in question was actually taken over in the year 1954-55. However, except for his statement, there is nothing on record to prove the said fact. Be that as it may be, the undisputed position is that as on the date of the initiation of the acquisition proceedings, the possession of the acquired land has been actually taken over by the State and the road in question stood constructed. This is also evident from the order dated 4.10.1996 passed by this Court in Civil Writ Petition No. 937/1996 (Ext.PW-1/A). 6 While determining the market value of the acquired land, the Collector has not assigned any reason for taking the average price of land situated in village Chaunthala. In my considered view, while determining the market value of the instant acquired land, the Collector has erred in recording that village Chaunthala is adjoining to village Badraina. The relevant portion of the award is reproduced as under:- “2. MARKET VALUE OF LAND:- No sale transaction took place in village Badrena within one year prior to the date of notification u/S 4. Therefore, the average price of land of adjoining village Chainthala was obtained and sent to the Distt. Collector Shimla who vide his office letter No.SML-SR- (237)/89-VIII-547 dated 15.7.1997, approved the same as under:- Classification of land Rate per bigha 1. Bakhal Awal Rs.20,000.00 2. Karali Awal Rs.11,660.60 3. Karali Doyam Rs. 5,000.00 4. Banjar Kadeem Rs. 5,000.00” From the map (Ext.DW-1/A) placed on record by the State, it is evident that village Badraina is not only adjacent but its boundaries touch the boundaries of villages Gehar, Pandli and Chambikupar. Village Chainthala is far off from village Badraina and in any event village Kotkhai (Mauja Gehar) is closure from village Badraina than village Chainthala. It is thus evident that the Collector wrongly recorded that village Chainthala is adjoining to village Badraina. 7 The Court below, in my considered view, has erred in recording that no instance of sale at any point of time comparable with the acquired land was available on record. The Court below erred in wrongly ignoring the sale transactions pertaining to village Gehar. Similarly, the Court erred in awarding different rates of compensation for different categories of the acquired land. The impugned award needs to be modified to the aforesaid extent. Taking into account the over all circumstances, in my considered view, in the absence of any sale transaction of village Badraina, market value of adjoining village Gehar, which stands proved by the claimants, needs to be considered. PW-2 has proved Sale Deed Ext.PW-2/A in terms of which 3 biswas of land was sold on 20.11.1995 for a sum of Rs.33,000/-. Market value in terms of the said Sale Deed comes to Rs.2,20,000/- per bigha. This witness has proved that village Gehar touches the boundary of village Badraina. PW-3 has proved Sale Deed Ext.PW-3/A in terms of which 3 biswas of land was sold on 25.11.1992 for a sum of Rs.52,000/-. Market value in terms of the said Sale Deed comes to Rs.3,46,000/- per bigha. He has deposed that the acquired land is just adjacent to the land sold in terms of the said sale transactions. He has seen the instant acquired land also. The sale transaction pertains to village Gehar. It is the common case of the State, as proved through the statement of DW-1 that between 1996 & 1997 no 8 sale transaction took place in village Badraina. DW-1 has proved the annual average price Ext.PX from which it is evident that the market value as on 11.3.1997, in village Gehar for different categories of land was as under:- Bakhal = Rs.15,40,000/- Per Bigha Bakhal Awal = Rs.2,20,000/- -do- Gair Mazua = Rs.2,20,000/- -do- PW-1 has further deposed that his land, acquired for construction of the road was of category Bakhal Awal and Bakhal Bagicha and the land is situated on the Jubbal Kotkhai road and is adjacent to Kotkhai bazar where the various facilities, such as, Telephone, Electricity, Water are available and School, College, PWD, I&PH, Forest Offices and Tehsil Headquarters are located. According to him, the acquired land is just adjacent to the land of Mauja Gehar. Village Chainthala is at a distance of 10 to 12 kms. by road and 5 kms. by short pedestrian path. His oral statement is to the effect that the market value of the acquired land is approximately Rs.15,40,000/- per bigha. Even though this witness has been cross-examined but, however, there is nothing which would prove that his statement with regard to the facilities and developmental activities at site can be doubted. Even DW-1 has admitted that in and around the acquired land, Tehsil headquarters are situated. Hence, the market value of the land of village Gehar can safely be relied upon and made basis for determining the market value of the instant acquired land. 9 It is a settled position of law that the Sale Deed of small transactions can be taken into account and made basis for determining the market value of the acquired land. {Secretary, HPPWD & Ors. v. Tunglu Latest HLJ 2008(2) 1017, Durgavati v. Nathpa Jhakri Power Project Corporation Latest HLJ 2008(2) 1328, Padmawati & Ors. v. State of H.P. & Anr. Latest HLJ 2008(2) 1417}. However, the parameters required to be adopted for making the same to be the basis has been laid down by the Apex Court in Ravinder Narain v. Union of India AIR 2003 SC 1987 as under:- 9. It can be broadly stated that the element of speculation is reduced to minimum if the underlying principles of fixation of market value with reference to comparable sales are made; (i) when sale is within a reasonable time of the date of notification under Section 4(1); (ii) it should be a bona fide transaction; (iii) it should be of the land acquired or of the land adjacent to the land acquired. (iv) it should possess similar advantages. The advantageous location of the acquired land with that of land in village Gehar as also Kotkhai, already stands proved on record. In terms of Ext.PX, the average sale price maintained for village Gehar, the market value ranges from Rs.2,20,000/- to Rs.15,40,000/- per bigha. I am conscious, that the average sale price maintained by the revenue authorities alone cannot be made basis for determining the market value 10 and, therefore, the other contemporaneous material needs to be looked into. From Sale Deeds Ext.PW-2/A & Ext.PW-3/A, no doubt, it is evident that the prices between the year 1992 & 1995 have come down. But, however, it is a fact that as on the date of the initiation of the acquisition proceedings or execution of Sale Deed Ext.PW-2/A, the road in question actually stood constructed. Therefore, judicial notice can be taken of the fact that after 1995 there is an over all increase of prices in the area, as the land adjacent to the road can be put to better and commercial use. This Court in Durgavati (supra) has held as under:- “Keeping in view the ratio of law laid down by the Apex Court in Om Parkash (D) by LRs and others vs. Union of India and another, AIR 2004 SC 4135. Land Acquisition Officer and Revenue Divisional Officer vs. Ramanjulu and others (2005) 9 SCC 594, and IInd Additional Special Land Acquisition Officer and another vs. Rukhiben and others, (2004) 8 SCC 577, judicial notice can be taken of the fact that the market value of the land is increasing day by day and there would be an average increase of 10% of the market price every years. While determining the market value of the land acquired, it has to be correctly determined and paid so that there is neither unjust enrichment on the part of the acquirer nor undue deprivation on the part of the owner. The price which a wiling vendor might reasonably expect to receive from the willing purchaser must be taken into consideration while at the same 11 time disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy it must be disregarded. Potentiality of land is also to be considered based on materials as are available. (Para 8) Ravinder Narain v. Union of India (2003) 4 SCC 481: AIR 2003 SC 1987. The acquired land having the advantageous location and the purpose of acquisition being construction of road, in my considered view, no deduction towards development of the land for the use of public purpose is required to be carried out. Hence, Sale Deed Ext.PW-2/A can safely be made basis for determining the market value of the instant acquired land. The deduction due to the smallness of the exemplar land can easily be set off with the corresponding increase in the prices of the land between the year 1995 and 1997. Therefore, in my view, the market value of the acquired land can safely be taken to Rs.2,20,000/- per bigha. The Division Bench of this Court in L.A.C., Solan v. Bhoop Ram 1997( 2) Sim.LC, 229, has taken the view that where the land is acquired for construction of the road and the entire land is to be utilized for the said purpose, the compensation is to be awarded uniformly regardless of the categories and classifications of the acquired land. This is the consistent view of this Court. In view of the discussions hereinabove, the market value of the acquired land is determined at Rs.2,20,000/- per bigh regardless of the categories and classifications of the 12 acquired land. The impugned award is modified to the aforesaid extent. The claimants shall be entitled to all other statutory benefits/compensation as determined by the Court below. Admittedly, the claimants have been wrongfully deprived of their rightful use of property prior to the year 1996. The damages for the use and occupation of the property prior to the initiation of the acquisition proceedings cannot be considered in the present proceedings. Liberty, however, is granted to the claimants to take recourse to such remedies as may be available to them in accordance with law. With regard to the damage caused due to the severance of the claimants land, I am afraid there is no evidence and material on record to prove that any damage was caused to the claimants un-acquired property or due to severance the value of the claimants remaining un-acquired land, in any manner is depleted. For the aforesaid reasons, the appeal filed by the claimants is allowed and that of the State is dismissed. ( Sanjay Karol ), Judge. June 22, 2009 (rana)