Himachal Pradesh High Court
Ntpc Ltd. (Kol Dam) vs Sewa Dass & Another on 11 January, 2017
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RFA No. 580 of 2012 a/w Cross Objection No.1016 of 2012 .
Date of Decision: January 11, 2017 NTPC Ltd. (Kol Dam), Barmana. ...Appellant.
Versus Sewa Dass & another. ...Respondents.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
of Whether approved for reporting?1No.
For the Appellant: Mr. Chandernarayan Singh,
Advocate, for the appellant-
rt NTPC/non objector.
For the Respondents: Mr.Jagan Nath, Advocate vice
Mr.Rakesh Kumar Bansal, Advocate, for respondent No.1/cross-objector.
Mr.R.S. Verma, Additional Advocate General, for respondent No.2- State/non-objector.
Sanjay Karol, J (oral).
The acquisition proceedings pertain to the Collector's award No.13 of 2004, dated 31.05.2004, pertaining to village Chamyon, Tehsil Sadar, District Bilaspur, H.P. In terms of the said award, the market value of the acquired land stands determined, classification wise from `94,553/- to `4,25,266/-. In the impugned land reference petition, the same stands re-
determined by the Reference Court @ `4,25,266/- per 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 21:53:51 :::HCHP 2
bigha, on uniform basis, for the reason that: (a) The observations made by the Collector in its award itself justified such enhancement.
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2. If the claimant(s) are held legally entitled for rates, on uniform basis, irrespective of classification and category, then the increase in the amount of re-
determination of the market value of the acquired land is of only marginal. The rates stand increased to `4,25,266/-
per bigha.
3. rtIn terms of award No.13 of 2004, dated 31.05.2004, Collector Land Acquisition, determined the market value of the acquired land awarding different rates, classification/category wise, ranging from `94,553/- to `4,25,266/- per bigha.
4. In terms of the impugned award dated 15.05.2012, passed by District Judge, Bilaspur, H.P., in Reference Petition No.8 of 2006, titled as Sewa Dass Versus The Acquisition Collector, Kol Dam Project, Bilaspur and another, the Reference Court re-determined the market value of the entire acquired land, irrespective of its category/classification, by uniformly awarding a sum of `4,25,266/- per bigha.
::: Downloaded on - 15/04/2017 21:53:51 :::HCHP 35. Certain facts are not in dispute: (i) 273-13 bighas (reduced from original area 307-12 bighas) of land came to be acquired in village Chamyon, Tehsil Sadar, .
District Bilaspur, H.P., with the publication of notification in the official gazette on 18.10.2000, so issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act); (ii) The acquisition proceedings of concluded with the passing of Collector's award No.13 of 2004 dated 31.05.2004, under Section 11 of the Act and the State taking over possession of the land; (iii) The rt 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. 8 of 2006) 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 came to be submerged with the construction of Dam by the beneficiary. Also there is no evidence on record of ::: Downloaded on - 15/04/2017 21:53:51 :::HCHP 4 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.
7. It is a settled principle of law that onus of establishing true market value of the acquired land, of higher than the one which stands determined by the Collector, is always upon the claimants.
8. Perusal of the Collector's award reveals that rt claimants themselves claimed compensation @ `30 lacs 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 evidence led by the claimants, which cannot be said to have been appreciated erroneously. Material, in its entirety, stands considered by the Court below.
::: Downloaded on - 15/04/2017 21:53:51 :::HCHP 510. With vehemence, Mr. Chandernarayan Singh, learned counsel, contends that Reference Court erred in considering the fact that before the Collector, claimants .
had themselves elected for award of compensation on the basis of classification/category, hence they were precluded from seeking re-determination of the market value of the acquired land on uniform basis.
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11. To rebut the same, Mr. Jagan Nath, learned counsel appearing on behalf of the private respondent, seeks reliance on the decision rendered by the Apex rt 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. (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 ::: Downloaded on - 15/04/2017 21:53:51 :::HCHP 6 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 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 of 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 rt 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 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.
::: Downloaded on - 15/04/2017 21:53:51 :::HCHP 7(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.
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(8) Only genuine instances have to be taken into account. (Sometimes instances are rigged up in 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 of 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 rt 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 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 ::: Downloaded on - 15/04/2017 21:53:51 :::HCHP 8 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 do. We may illustrate some such illustrative (not exhaustive) factors :-
(For table see below) Plus factors Minus factors
1. Smallness of size. 1. largeness of area.
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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 rt 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 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 ::: Downloaded on - 15/04/2017 21:53:51 :::HCHP 9 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 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.
of 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 rt 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) 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.
::: Downloaded on - 15/04/2017 21:53:51 :::HCHP 1012. Significantly while responding to the reference petition or at the time of recording evidence, such objection never came to be taken by the beneficiary.
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Even before this Court, it is not a pleaded ground in the memo of appeal. In fact, as is evident from the reference petition, claimants had claimed rates @ `30 lacs per bigha, on uniform basis.
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13. In any event, Reference Court is duty bound to determine such market value, which is just, fair and reasonable.rt
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 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 ::: Downloaded on - 15/04/2017 21:53:51 :::HCHP 11 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 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 of for carrying out any developmental activity, then the claimants are entitled for compensation for the entire acquired land, rt 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.
17. 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 ::: Downloaded on - 15/04/2017 21:53:51 :::HCHP 12 sum of ` 40,000/- per acre, irrespective of the classification and the category of land.
18. Further, in Nelson Fernades vs. Special Land .
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 development charges was permissible as there was no of 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 rt 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 & 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 ::: Downloaded on - 15/04/2017 21:53:51 :::HCHP 13 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 .
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 market value of the acquired land.
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22. It is a matter of record that claimants examined four witnesses, namely, Jagdish Chand (PW.1), Gopal Dass (PW.2), Sewa Dass (PW.3) and Anup Kumar rt (PW.4). Also claimants placed on record exemplar sale deeds (Ex.PW.1/A, Ex.PW.3/A, Ex.PW.3/B & Ex.PW.3/C).
23. It is also a matter of record beneficiary examined five witnesses, namely, Ramesh Chand Sharma (RW.1), Smt. Renu Ranaut (RW.2), Rajinder Singh Chandel (RW.3), Yashwant Singh (RW.4) & Om Prakash (RW.5). Through these witnesses, statements of claimants in other land reference petitions were sought to be proved being Ex.RW.5/A, Ex.RW.3/A to Ex.RW.3/F. Also beneficiary tendered in evidence sale deeds (Ex.RA to Ex.RG & Ex.RX); award dated 31.05.2008, in reference petition No.29 of 2003, pertaining to village Nehar ::: Downloaded on - 15/04/2017 21:53:51 :::HCHP 14 (Ex.RW.3/G); and award dated 30.04.2009, in reference petition No.67 of 2005, pertaining to village Deula Chhamb (Ex.RW.3/H).
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24. Reference Court, as is evident from discussions in paragraphs No.21 to 26 of the impugned award, discarded the sale deeds so produced by the claimants, for the reason that they pertain to small of parcels of land. Also they were not with respect to the village in question. Insofar as exemplar sale deeds produced by the beneficiary is concerned, they stand rt discarded also for very same reason. However, keeping in view the fact that the entire land was utilized for public purpose by the beneficiary, market value of the acquired land stood re-determined with the award of highest rate, so determined by the Collector, irrespective of its classification and category.
25. Having heard learned counsel for the parties as also perused the record, reasoning adopted by the Reference Court cannot be said to be perverse, erroneous or illegal. The exemplar sale deeds and awards passed by the Reference Court do not pertain to the village in question. None of the witnesses could ::: Downloaded on - 15/04/2017 21:53:51 :::HCHP 15 establish similarity of the acquired land with that of the exemplar awards so referred to and relied upon by them.
26. Insofar as the sale deeds placed on record by .
the beneficiary are concerned, no doubt, in view of the statutory provisions (Section 51-A of the Act) and the law laid down by the Apex Court in Cement Corpn. of India Ltd. Versus Purya and others, (2004) 8 SCC 270, these of sale transactions cannot be ignored, but however, there is no evidence on record, establishing comparability of the acquired land with these exemplar sale transactions.
rt No ocular evidence was led by the beneficiary. In this view of the matter, these sale transactions cannot be accounted for, for just determination of a fair market value of the acquired land.
27. Before this Court no material other than the Reference Court has considered was brought to the notice of this Court. Also no fresh material was placed before this Court in support of their respective claims.
Save and except attention of this Court was invited to the judgment dated 13.12.2016, rendered in RFA No. 325 of 2010 wherein it is observed as under:-
"17. Close examination of testimonies of the aforesaid witnesses would only establish: (i) the ::: Downloaded on - 15/04/2017 21:53:51 :::HCHP 16 sale transactions to have been proven on record, in accordance with law, for the vendor and vendee stepped into the witness box; (ii) Similarity of the exemplar sale deed with that of acquired land vis-
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a-vis its potential, use and nature stands proved;
(iii) the beneficiary never doubted veracity of the witnesses and their testimony about the authenticity and genuineness of the sale transactions; and (iv) the land situate in village Kayan is similar to the land situate in adjoining of village Ropa, Tehsil Sunder Nagar, District Mandi, Mohal Tatapani in Tehsil Karsog, District Mandi and Mohal Bahot Kasol in District Bilaspur".
28. rt The decision stands rendered in the given facts and circumstances of the said case and has no binding effect for the simple reason that in the present case there is no independent evidence with regard to similarity of the acquired land vis-a-vis its use, nature and potential.
29. The Reference Court has taken note of the similarity, productivity and potentiality.
30. Reliance by the beneficiary on the decision rendered by the Apex Court in Trishala Jain and another 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 ::: Downloaded on - 15/04/2017 21:53:51 :::HCHP 17 the one in hand. Also this Court has otherwise dealt with the issue in the earlier part of the judgment.
31. No other point urged or proved.
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32. Hence in the given facts and circumstances, 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 of dismissed, so also pending application(s), if any.
33. Cross-objection/cross-appeals stand rejected in view of the aforesaid discussion, more so, for the rt reason that no evidence other than the one discussed hereinabove, was brought to the notice of the Court.
Insofar as the issue of enhancement for the superstructure is concerned, specific attention of the Court is invited to the valuation report (Ex.PW.4/A). This Court does not find any reason to differ with the discussion on the issue by the Reference Court in paragraph No. 38 of the impugned award. The basis on which Architect prepared the report remains unestablished on record.
34. Quite evidently, in terms of award No.13 of 2004, so passed by the Collector, several land reference ::: Downloaded on - 15/04/2017 21:53:51 :::HCHP 18 petitions came to be clubbed and disposed of by the common impugned award dated 15.05.2012, passed by District Judge, Bilaspur, H.P., in Reference Petition No.8 of .
2006 titled as Sewa Dass Versus The Land Acquisition Collector, Kol Dam Project, Bilaspur and another.
Common evidence was led by the parties in land Reference Petition No.8 of 2006. Learned counsel for the of 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 rt impugned award, pending before this Court. Registrar (Judicial) to take appropriate instructions from Hon'ble the Chief Justice for listing of such connected appeals, before the appropriate Court particulars whereof shall also be supplied by learned counsel for the parties.
(Sanjay Karol), Judge.
January 11, 2017 (Purohit/PK) ::: Downloaded on - 15/04/2017 21:53:51 :::HCHP