Himachal Pradesh High Court
Ntpc Limited vs Nikku Ram & Others on 12 January, 2017
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RFA No. 39 of 2015 a/w Cross-Objection No.146 of 2016 .
Date of Decision: January 12, 2017 NTPC Limited, Barmana, Bilaspur. ...Appellant.
Versus Nikku Ram & others. ...Respondents. Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
of Whether approved for reporting?1No. For the Appellant: Mr. Neeraj Gupta, Advocate, for the rt appellant-NTPC/non cross-objectors.
For the Respondents: Ms. Veena Sharma and Mr.Abhishek Sharma, Advocates, for respondents No.1 to 9 /Cross-objectors.
Mr.Shrawan Dogra, AG with M/s R.M. Bisht and R.S. Verma, Addl.
AGs., for respondent No.10- State/non cross-objector.
Sanjay Karol, J (oral).
The acquisition proceedings pertain to the Collector's award No.21 of 2004, dated 15.12.2004, pertaining to village Jamthal, Tehsil Sadar, District Bilaspur, H.P. In terms of the said award, the market value of the acquired land stands determined, classification wise from `94,905/- to `4,26,792/-. In the 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 21:54:24 :::HCHP 2
impugned land reference petition, the same stands re-
determined by the Reference Court @ `4,26,792/- per bigha, on uniform basis, for the reason that: (a) The .
observations made by the Collector in its award itself justified such enhancement.
2. If the claimant(s) are held legally entitled for rates, on uniform basis, irrespective of classification and of category, then the increase in the amount of re-
determination of the market value of the acquired land is only marginal.
rt
3. In terms of award No. award No.21 of 2004, dated 15.12.2004, Collector Land Acquisition, determined the market value of the acquired land awarding different rates, classification/category wise, ranging from `94,905/- to `4,26,792/-per bigha.
4. In terms of the impugned award dated 24.05.2014, passed by Additional District Judge, Ghumarwin, District Bilaspur, H.P. (Camp at Bilaspur) in Reference Petition No.130-4 of 2008, titled as Nikku Ram and others Versus Land Acquisition Collector, Kol Dam, Bilaspur and another, the Reference Court re-determined the market value of the entire acquired land, irrespective ::: Downloaded on - 15/04/2017 21:54:24 :::HCHP 3 of its category/classification, by uniformly awarding a sum of `4,26,792/- per bigha.
5. Certain facts are not in dispute: (i) 327-1 .
bighas (reduced from original area 805-2 bighas) of land came to be acquired in village Jamthal, Tehsil Sadar, District Bilaspur, H.P., with the publication of notification in the official gazette on 06.09.2001, so issued under of Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act); (ii) The acquisition proceedings concluded with the passing of Collector's award No.21 of rt 2004, dated 15.12.2004, under Section 11 of the Act and the State taking over possession of the land; (iii) The purpose of acquisition being construction of Dam, commonly known as Kol Dam; (iv) Dissatisfied with the offer made by the Collector, claimants filed petitions under Section 18 of the Act, which came to be clubbed (with Reference Petition No. 130-4 of 2008) and on the basis of common evidence led by the parties, disposed of in terms of impugned award; (v) Both the claimants and the beneficiary have preferred the present appeal(s) under Section 54 of the Act/cross-objections; (vi) It is the common case of parties that the entire acquired land ::: Downloaded on - 15/04/2017 21:54:24 :::HCHP 4 came to be submerged with the construction of Dam by the beneficiary. Also there is no evidence on record of either any requirement or any developmental activity .
carried out on the spot.
6. With these admitted/undisputed facts, material placed on record by the parties is being appreciated for just decision of the case.
of
7. It is a settled principle of law that onus of establishing true market value of the acquired land, higher than the one which stands determined by the rt Collector, is always upon the claimants.
8. Perusal of the Collector's award reveals that claimants themselves claimed compensation @ `25,00,000/- per bigha. But then it was category/classification wise.
9. It is a settled principle of law that Collector's award is a mere offer and in the proceedings under Section 18 of the Act, Court is duty bound to determine the market value, which is just, fair and reasonable, on the basis of material placed on record by the parties.
The conclusion with respect to re-determination of the market value, in the instant case, is clearly based on the ::: Downloaded on - 15/04/2017 21:54:24 :::HCHP 5 evidence led by the claimants, which cannot be said to have been appreciated erroneously. Material, in its entirety, stands considered by the Court below.
.
10. With vehemence, Mr. Neeraj Gupta, learned counsel, contends that Reference Court erred in considering the fact that before the Collector, claimants had themselves elected for award of compensation on of the basis of classification/category, hence they were precluded from seeking re-determination of the market value of the acquired land on uniform basis.
rt
11. To rebut the same, Ms. Veena Sharma, learned counsel, seeks reliance on the decision rendered by the Apex Court in Chimanlal Hargonvinddas Versus Special Land Acquisition Officer, Poona and another, AIR 1988 SC 1652; (1988) 3 SCC 751, wherein the Court made the following observations:-
"4 The following factors must be etched on the mental screen :
(1) A reference under Section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition Officer in his Award unless the same material is produced and proved before the Court.::: Downloaded on - 15/04/2017 21:54:24 :::HCHP 6
(2) So also the Award of the Land Acquisition Officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the court hearing the Reference. It is merely an .
offer made by the Land Acquisition Officer and the material utilised by him for making his valuation cannot be utilised by the Court unless produced and proved before it. It is not the function of the court to sit in appeal against the Award, approve or disapprove its reasoning, or correct its error or of affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an appellate Court.
(3) The Court has to treat the reference as an rt original proceeding before it and determine the market value afresh on the basis of the material produced before it.
(4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose.
(5) The market value of land under acquisition has to be determined as on the crucial date of publication of the notification under S. 4 of the Land Acquisition Act (dates of Notifications under Ss. 6 and 9 are irrelevant).
(6) The determination has to be made standing on the date line of valuation (date of publication of notification under S. 4) as if the valuer is a hypothetical purchaser willing to purchase land ::: Downloaded on - 15/04/2017 21:54:24 :::HCHP 7 from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price.
.
(7) In doing so by the instances method, the Court has to correlate the market value reflected in the most comparable instance which provides the index of market value.
(8) Only genuine instances have to be taken into account. (Sometimes instances are rigged up in of anticipation of Acquisition of land.) (9) Even post-notification instances can be taken into account (1) if they are very proximate, (2) genuine and (3) the acquisition itself has not rt motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects.
(10) The most comparable instances out of the genuine instances have to be identified on the following considerations :
(i) proximity from time angle
(ii) proximity from situation angle. (11) Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-a-vis land under acquisition by placing the two in juxtaposition. (12) A balance-sheet of plus and minus factors may be drawn for this purpose and the relevant ::: Downloaded on - 15/04/2017 21:54:24 :::HCHP 8 factors may beevaluated interms of price variation as a prudent purchaser would do. (13) The market value of the land under acquisition has thereafter to be deduced by .
loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors.
(14) The exercise indicated in clauses (11) to (13) has to be undertaken in a common sense manner as a prudent man of the world of business would of do. We may illustrate some such illustrative (not exhaustive) factors :-
(For table see below) Plus factors rt Minus factors
1. Smallness of size. 1. largeness of area.
2. Proximity to a road. 2. situation in the interior at a distance from the road.
3. frontage on a road. 3. narrow strip of land with very small frontage compared to depth.
4. nearness to developed 4. lower level requiring the area. depressed portion to be filled up.
5. regular shape. 5. remoteness from developed locality.
6. level vis-a-vis land 6. some special under acquisition. disadvantageous factor which would deter a purchaser.
7. special value for an owner of an adjoining property to whom it may have some very special advantage.
(15) The evaluation of these factors of course depends on the facts of each case. There cannot ::: Downloaded on - 15/04/2017 21:54:24 :::HCHP 9 be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds cannot be .
compared with a large tract or block of land of say 10000 eq. yds. or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile of the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction byway of an allowance at an appropriate rate ranging approx. rt between 20% to 50% to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be locked up, will be longer or shorter and the attendant hazards.
(16) Every case must be dealt with on its own fact pattern bearing in mind all these factors as a prudent purchaser of land in which position the Judge must place himself.
(17) These are general guidelines to be applied with understanding informed with common sense."
(Emphasis supplied) ::: Downloaded on - 15/04/2017 21:54:24 :::HCHP 10 Reliance is also sought on the decision rendered by the Apex Court in Special Land Acquisition Officer Versus Karigowda and others, (2010) 5 SCC 708.
.
12. Significantly while responding to the reference petition or at the time of recording evidence, such objection never came to be taken by the beneficiary.
Even before this Court, it is not a pleaded ground in the of memo of appeal. In fact, as is evident from the reference petition, claimants had claimed rates @ `25,00,000/- per bigha, on uniform basis.
rt
13. In any event, Reference Court is duty bound to determine such market value, which is just, fair and reasonable.
14. The law for award of compensation at uniform rates, when the purpose of acquisition is common and no developmental activity is required to be carried out is no longer res integra and stands settled by Hon'ble the Supreme Court in Viluben Jhalejar Contractor (Dead) by LRs Versus State of Gujarat, (2005) 4 SCC 789 (paras 22 and 23); Himmat Singh and others Versus State of Madhya Pradesh and another, (2013) 16 SCC 392 (para
34); Peerappa Hanmantha Harijan (Dead ) By Legal ::: Downloaded on - 15/04/2017 21:54:24 :::HCHP 11 Representatives and others Versus State of Karnataka and another, (2015) 10 SCC 469 (paras 80 and 81); as also this Court in RFA No. 953 of 2012, titled as Land .
Acquisition Collector & another Versus Jatinder Singh, decided on 01.06.2016 and other connected matters. As such, at this point in time, in view of admitted/undisputed factual matrix, as noticed earlier, it would not be of permissible for the beneficiary to raise such objections.
15. Now it is a settled principle of law that if the entire land is put for a public use and no area is left out rt for carrying out any developmental activity, then the claimants are entitled for compensation for the entire acquired land, at uniform rates, regardless of its categorization.
16. The apex Court in Haridwar Development Authority vs. Raghubir Singh & others, (2010) 11 SCC 581 has upheld the award of compensation on uniform rates.
Also it has acknowledged the principle of providing increase in the market value up to 10% to 12% per year for the land situated near urban areas having potential for non-agricultural development.
::: Downloaded on - 15/04/2017 21:54:24 :::HCHP 1217. In Union of India vs. 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 ` 40,000/- per acre, irrespective of the classification and the category of land.
18. Further, in Nelson Fernades vs. Special Land of 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 rt development charges was permissible as there was no question of any development thereof.
19. Similar view stands taken by this Court in Gulabi and etc. Vs. State of H.P., AIR 1998 HP 9 and later on in H.P. Housing oard vs. Ram Lal & Ors. 2003(3) Shim.
L.C. 64, which judgment has attained finality as SLP (Civil) No. 15674-15675 of 2004 titled as Himachal Pradesh Housing Board vs. Ram Lal (D) by LRs & Others, filed by the H.P. Housing Board came to be dismissed by the Apex Court on 16.8.2004.
20. This judgment was subsequently referred to and relied upon by this Court in Executive Engineer & ::: Downloaded on - 15/04/2017 21:54:24 :::HCHP 13 Anr. vs. Dilla Ram {Latest HLJ 2008 HP 1007} and relying upon the decision of the Apex Court in Harinder Pal Singh (supra), wherein the market value of the land under .
acquisition situated in five different villages was assessed uniformly irrespective of its nature and quality, also awarded compensation on uniform rates.
21. It is a matter of fact that the entire land was of put to public purpose. Dam stood constructed thereupon.
It was used for only one purpose and as such there cannot be any error in uniform determination of the rt market value of the acquired land.
22. In support of their claim, claimants examined five witnesses, namely, Jagdish Awasthi (PW.1), Sukh Dev (PW.2), Hariman (PW.3), Paras Ram (PW.4) and Jindu Ram (PW.5). Record reveals that these witnesses proved on record only one exemplar sale deed i.e. Ex.PW.3/A / Ex.PA). Additionally the claimants, as is evident from the statement of the learned counsel (page-84 of the paper book) tendered in evidence sale deeds (Ex.PA, Ex.PB, Ex.PC, Ex.PD and Ex.PF). Also copy of award dated 30.07.2013, passed by the Reference Court in reference petition No.227 of 2008, titled as Ranjit Singh Versus ::: Downloaded on - 15/04/2017 21:54:24 :::HCHP 14 Land Acquisition Collector, Kol Dam, Bilaspur (Ex.PE) was tendered in evidence.
23. On the other hand, beneficiary through .
statement of K.K. Sharma (RW.1) tendered in evidence sale deeds (Ex.RE, Ex.RF, Ex.RG, Ex.RH & Ex.RJ). No other evidence on the issue of market value of the acquired land was led by the parties.
of
24. In terms of the impugned award dated 24.05.2014 , Reference Court, in paragraphs 15 to 20 has dealt with the sale deeds and award placed on record by rt the parties. While discarding sale deed (Ex.PW.3/A / Ex.PA), Reference Court relied upon statements of one Dandu Ram and Anil Kumar (Ex.RB & Ex.RC), claimants' witnesses, in some other land reference petitions. Now this approach adopted by the Reference Court cannot be said to be legal. In the instant case, tender of such evidence i.e. statements of the claimants, was not legally admissible for the reason that such statements never came to be proved on record, in accordance with law.
They were merely tendered. However, at this point in time, what needs to be noticed is that initially present land reference petition No.130-4 of 2008, titled as Nikku ::: Downloaded on - 15/04/2017 21:54:24 :::HCHP 15 Ram and others Versus LAC, Kol Dam and another, was directed to be clubbed alongwith reference petition No.140-4 of 2008, titled as Bhuri Singh Versus LAC and .
another. It was only vide order dated 26.11.2013 that these land reference petitions came to be segregated and such statements stand duly proven in the latter petition. Record further reveals that though the petitions of were segregated but were being taken up together by the Reference Court. Be that as it may, the fact of the matter is that in the instant case, such statements of the rt claimants never came to be proven on record, in accordance with law.
25. However, this would still not advance the case of the claimants or for that matter, the beneficiary. Save and except one sale deed (Ex.PW.3/A), claimants and the beneficiary did not lead any evidence to establish similarity of the acquired land with that of the exemplar sale deeds (Ex.PA, Ex.PB, Ex.PC, Ex.PD, Ex.PF, Ex.RE, Ex.RF, Ex.RG, Ex.RH and Ex.RJ).
26. Insofar as the sale deeds placed on record by the beneficiary/claimants are concerned, no doubt, in view of the statutory provisions (Section 51-A of the Act) ::: Downloaded on - 15/04/2017 21:54:24 :::HCHP 16 and the law laid down by the Apex Court in Cement Corpn. of India Ltd. Versus Purya and others, (2004) 8 SCC 270, these sale transactions cannot be ignored, but .
however, there is no evidence on record, establishing comparability of the acquired land with these exemplar sale transactions. No ocular evidence was led by the beneficiary. In this view of the matter, these sale of transactions cannot be accounted for, for just determination of a fair market value of the acquired land.
27. Reference Court found the sale deeds placed rt on record by the beneficiary not reflecting true and correct market value for the reason that the sale transactions were of value lower than the amount determined by the Collector himself. Insofar as other sale deeds tendered by the beneficiary are concerned, Reference Court found them to be of other villages i.e. Kasol, Chamyon and not Jamthal. Be that as it may, these sale transactions could not have been considered for determining the true and correct market value of the acquired land.
28. Sale transaction (Ex.PW.3/A) pertains to 6 biswas of land, sold on 17.08.2001 @ 50,000/- per biswa.
::: Downloaded on - 15/04/2017 21:54:24 :::HCHP 17The vender and the vendee (Hari Man-PW.3 and Paras Ram- PW.4) have stepped into the witness box to prove the same. On careful appreciation of testimonies of .
these witnesses, one finds transaction not to be genuine.
There is no record of exchange of any money. Though the witnesses have denied, but judicial notice can be taken of the fact that in the year 2000 itself, acquisition of proceedings for establishment of Kol Dam had already commenced in the adjoining villages Chamyon and Kasol.
In any event, these witnesses have categorically not rt deposed on the issue of similarity of potentiality of the acquired land. Also one finds transaction in question to be of small parcel of land i.e. only 6 biswas, whereas the acquired land is to the extent of 317 bighas. While rejecting such sale transaction, one finds the case to be squarely covered by the decision rendered by the Apex Court in Sadasivam Versus K.Doraisamy, (1996) 8 SCC
624. Hence, this sale transction (Ex.PW.3/A) cannot be said to be reflective of true and correct market value of the acquired land prevalent at the time of commencement of the acquisition proceedings. Also sale ::: Downloaded on - 15/04/2017 21:54:24 :::HCHP 18 transaction cannot be said to be genuine in view of the law laid down by the Apex Court in Karigowda (supra).
29. Now Award dated 30.07.2013 (Ex.PE) pertains .
to the land acquired in village Kasol, whereby market value of the acquired land stands re-determined at `,469,955/- per bigha. The claimants have not led any evidence to establish similarity with regard to the use, of nature and potential of the acquired land with that of the exemplar award. Attention is invited to the testimony of Sukh Dev (PW.2), but then even he does not state such rt fact. All that he states is that boundaries of village Jamthal are adjoining to village Chamyon. Also Paras Ram (PW.4) has deposed on similar lines. But then that is about all. They only state that the land in village Jamthal is similar to that of land of village Chamyon, Kasol etc. But then, they are conspicuously silent on the issue of the similarity of use, nature and potential. There is no evidence to establish that the land of best category as awarded in Award (Ex.PE) was identical or similar in nature or use with regard to the best category of the land, covered under the impugned award.
::: Downloaded on - 15/04/2017 21:54:24 :::HCHP 1930. In the instant case, Reference Court has uniformly re-determined the market value, irrespective of its category and classification @ 22,000/- per biswa. The .
claimants on the strength of one isolated transaction and that too with regard to the small parcel of land are claiming enhancement to a sum of `50,000/- per biswa.
Even by applying the principle of deduction, claimants of would not be entitled to an amount higher than what stands awarded by the Reference Court.
31. Insofar as claim of enhancement with regard rt to superstructure, edge walls etc. is concerned, one finds the Reference Court to have elaborately discussed the evidence led by the parties and the reasoning adopted for rejecting such claim, in paragraphs 32 to 39 of the impugned award, cannot be said to be perverse, illegal or not borne out from the record. Material placed by the claimants, stand considered and fully appreciated.
Whether the claimants are owners of the land over which edge walls stood constructed, remains un-established on record.
32. Reliance by the beneficiary on the decision rendered by the Apex Court in Trishala Jain and another ::: Downloaded on - 15/04/2017 21:54:24 :::HCHP 20 Versus State of Uttranchal and another, (2011) 6 SCC 47, is also misplaced for the decision is rendered in the attending facts and circumstances totally different from .
the one in hand. Also this Court has otherwise dealt with the issue in the earlier part of the judgment.
33. No other point urged or proved.
34. Hence in the given facts and circumstances, of no interference is warranted. It cannot be said that the findings returned by the Reference Court are perverse, illegal or erroneous. As such, present appeal stands rt dismissed, so also pending application(s), if any.
35. Cross-objection/cross-appeals stand rejected in view of the aforesaid discussion, more so, for the reason that no evidence other than the one discussed hereinabove, was brought to the notice of the Court.
36. Quite evidently, in terms of award No. award No.21 of 2004, so passed by the Collector, several land reference petitions came to be clubbed and disposed of by the common impugned award dated 24.05.2014, passed by Additional District Judge, Ghumarwin, District Bilaspur, H.P. (Camp at Bilaspur), in Reference Petition No.130-4 of 2008 titled as Nikku Ram and others Versus ::: Downloaded on - 15/04/2017 21:54:24 :::HCHP 21 Land Acquisition Collector, Kol Dam and another.
Common evidence was led by the parties in land Reference Petition No.130-4 of 2008. Learned counsel .
for the parties jointly submit that decision rendered in the present appeal would have an automatic bearing on the other connected appeals, arising out of the very same impugned award, pending before this Court.
of Registrar (Judicial) to take appropriate instructions from Hon'ble the Chief Justice for listing of such connected appeals, before the appropriate Court particulars whereof rt shall also be supplied by learned counsel for the parties.
(Sanjay Karol), Judge.
January 12, 2017 (Purohit/PK) ::: Downloaded on - 15/04/2017 21:54:24 :::HCHP