Himachal Pradesh High Court
Rama Nand & Others vs State Of H.P. & Others on 25 April, 2024
Author: Virender Singh
Bench: Virender Singh
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No. 341 of 2008 a/w RFA Nos. 346, 347, 348 and 371 of 2008 .
Reserved on: 15.3.2024 Decided on: 25.4.2024 RFA No. 341 of 2008 Rama Nand & others ... Appellants Versus State of H.P. & others ...Respondents RFA No. 346 of 2008 Rama Nand & anr.
....Appellants Versus State of H.P. & others ...Respondents RFA No. 347 of 2008 Basia (deceased) through LRs ...Appellants Versus State of H.P. & others ...Respondents ::: Downloaded on - 25/04/2024 21:42:10 :::CIS 2 RFA No. 348 of 2008 Basia (deceased) through LRs ..Appellants Versus .
State of H.P. & others ..Respondents RFA No. 371 of 2008 Prabhu & anr.
...Appellants
Versus
State of H.P. & others
r to ...Respondents
___________________________________________ Coram Hon'ble Mr. Justice Virender Singh, Judge Whether approved for reporting? yes ___________________________________________________ For the Appellants: Mr. G.D. Verma, Senior Advocate, assisted by Mr. Sumit Sharma, Advocate (in all the appeals).
For the Respondents : Mr. H.S. Rawat, Additional Advocate General, for respondents No. 1 to 3-
State ( in all the appeals)
Mr. Hamender Singh
Chandel, Advocate, for
respondent No. 4 (in all the
appeals)
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3
Virender Singh, Judge
.
The above titled appeals are being disposed of by a common judgment, as all the appeals have been preferred, against the award, dated 28.6.2008, passed by the learned District Judge, Shimla, (hereafter referred to as 'the learned Reference Court').
2 Vide award dated 28.6.2008, the learned Reference Court has decided five reference petitions, lead where of, is Land Reference Petition No. 14-S/4 of 2006, titled as, 'Rama Nand and others versus State of H.P. & others'.
3. The parties to the present lis are referred to, in the same manner, in which, they were referred to, by the learned Reference Court.
4. Vide award dated 28.6.2008, the learned Reference Court has answered all the five reference petitions, in the following terms:
"In view of the findings recorded on the aforesaid issues is allowed. The petitioners are held entitled to get the enhanced amount of compensation at the rate of Rs. 4, 95,000/- per Bigha at time of Notification under Section 4 of the Act along with all the following statutory benefits.::: Downloaded on - 25/04/2024 21:42:10 :::CIS 4
i) Interest at the rate of 12% per annum on the market value from the date of Notification under Section 4 of the Act till the date of award under Section 23 (1-A) of the Act.
ii) In addition to the market value, the petitioners are .
held entitled to get solatium or compulsory acquisition charges at the rate of 30% on such market value as provided under Section 23(2) of the Act; and
iii) Interest at the rate of 9% per annum from the date of Notification under Section 4 of the Act up to one year and, thereafter, at the rate of 15% per annum, till payment is made in the court as provided under Section 34 of the Act."
5. In order to decide the above appeals, the facts are being borrowed from Reference Petition No. 14-S/4 of 2006, titled as, 'Rama Nand & others versus State of H.P. & others'.
6. The State of Himachal Pradesh has acquired the land for construction of sewerage pipe line, in mauza Chhakrial, Tehsil and District Shimla. In this regard, notification, under Section 4 of the Land Acquisition Act (hereinafter referred to as 'the Act'), has been issued, on 5.2.2004, which was given wide publicity, as per the mandate of the Act. Thereafter, proceedings under Sections 6 and 7 of the Act were conducted and ultimately vide award No. 6/2005, dated 25.4.2005, the land was acquired.
::: Downloaded on - 25/04/2024 21:42:10 :::CIS 57. The market value of the acquired land has been fixed @ Rs. 80,000/- per bigha. Apart from this, statutory relief has also been granted to the petitioners.
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8. Since, the petitioners were not satisfied with the market value of the land, assessed by the Land Acquisition Collector, prevailing at the time of issuance of notification, under Section 4 of the Act, as such, they have made reference, under Section 18 of the Act, which, on their request, was forwarded to the learned Reference Court, for adjudication.
9. The petitioners have preferred the reference petition, mainly, on the ground that commercial potentiality of the acquired land, has not been considered, by the Land Acquisition Collector. According to them, the acquired land is situated at mauza Chhakrial, which is part and parcel of Shimla town, and having modern facilities, with regard to education, health, road, electricity, telephone and veterinary etc.
10. In addition to this, they have also sought the amount of compensation, on account of severance of their holdings, as well as, in view of the fact that laying of sewerage pipe line has caused extensive damage to the remaining area of the petitioners, by throwing debris and stones.
11. On the basis of above facts, a prayer has been made that market value of the acquired land may kindly be assessed, ::: Downloaded on - 25/04/2024 21:42:10 :::CIS 6 keeping in view the commercial potentiality of the acquired land, as in the said area, no one is ready and willing to part with the land, even @ Rs. 20,00,000/- per bigha.
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12. When, put to notice, the Reference Petition has been contested by the respondents, in which, the factual position, with regard to acquisition of the land, has not been disputed.
However, according to the respondents, the Land Acquisition Collector, while assessing the market value of the acquired land, prevailing at the time of issuance of notification, under Section 4 of the Act, has considered the relevant facts, including commercial potentiality of the acquired land.
12.1. In addition to this, a plea has also been taken that the acquired land is situated far away from Dhalli town, and National Highway is about 2.5 km. away, from the land in question.
12.2. The area is also stated to be an undeveloped area without any civic amenities. It is the further case of the respondents that the Land Acquisition Collector has not deducted 50% amount, on account of development cost, which, according to them, is mandatory.
12.3. On the basis of above facts, a prayer has been made to dismiss the reference petition.
::: Downloaded on - 25/04/2024 21:42:10 :::CIS 713. The petitioners have filed replication, denying the objections, as well as, the contents of the reply, by virtue of which, Reference Petition has been contested.
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14. From the pleadings of the parties, following issues were framed, by the learned Reference Court, vide order dated 12.6.2006:
1. Whether the Collector had not assessed properly market value of the acquired land, if so, what was its value at the time of acquisition? OPP
2. Whether the remaining holdings of the petitioners was bifurcated on account of acquisition, if so, to what effect?
OPP
3. Whether the adjoining un-acquired land of the petitioners was damaged by throwing debris thereon and caused a loss of Rs. 50,000/-, as alleged? OPP
4. Relief.
15. Thereafter, parties to the lis were directed to adduce evidence. After closure of evidence, the learned Reference Court has answered the reference petitions, by award impugned herein.
16. Feeling aggrieved from the said award, the petitioners have preferred the present Regular First Appeals, before this Court.
17. The award has mainly been challenged on the ground that the Land Acquisition Collector has wrongly deducted 45% ::: Downloaded on - 25/04/2024 21:42:10 :::CIS 8 amount, on account of development charges, as, according to the appellants, the acquired land was to be utilized for laying sewerage pipelines, as such, no development charges, could be .
deducted. The market value, which has been assessed by the learned Reference Court, is also stated to be inadequate.
18. On the basis of above facts, Mr. G.D. Verma, Senior Advocate, assisted by Mr. Sumit Sharma, Advocate, appearing for the petitioners, has prayed that the appeals may kindly be allowed.
19. Per contra, the prayer so made, has been opposed by Mr. H.S. Rawat, learned Additional Advocate General, appearing for respondents No. 1 to 3-State, as well as, by Mr. Hamender Chandel, Advocate, appearing for respondent No. 4, on the ground that the present appeals san merit and the same may kindly be dismissed.
20. The sole question, which arises for determination, in these appeals, is whether the amount, deducted on account of development charges, is sustainable in the eyes of law, or not?
21. Perusal of the record shows that the learned Reference Court, while determining the market value of the acquired land, has deducted 45% of the said amount, on account of development charges, and thus, the market value of the acquired land, has been assessed @ Rs. 24,750/- per biswa.
::: Downloaded on - 25/04/2024 21:42:10 :::CIS 922. The market value, assessed by the learned Reference Court, is Rs. 55,000/- per biswa. Thereafter, from the said amount, 45% has been deducted, on account of development .
charges.
23. The learned Additional Advocate General, appearing for respondents No. 1 to 3, as well as, the learned counsel appearing for respondent No. 4, could not satisfy the judicial conscious of this Court, as to how the development charges, on account of laying sewerage pipeline, could be deducted.
24. If the facts and circumstances of the present case are seen, in the light of the decision of Hon'ble Supreme Court, in Bhikulal Kedarmal Goenka versus State of Maharashtra & anr, reported in 2016 (14) SCC 279, the development charges cannot be deducted, from the amount, which has been assessed, as market value of the acquired land, prevailing at the time of issuance of notification, under Section 4 of the Act, as no development is required to be made for implementation of public purpose, for which the land is acquired. Relevant paragraph of the judgment is reproduced as under:
"4. It was the vehement contention of the learned counsel for the appellants, that there was no justification whatsoever, for recording any deduction, specially when there was no question of any internal or external development, and as such, expenses of such developments ::: Downloaded on - 25/04/2024 21:42:10 :::CIS 10 should not have been taken into consideration so as to grant a deduction of 1/3rd of the amount. In order to substantiate his above contention, learned counsel for the appellants has referred to the decision in Sabhia Mohammed Yusuf Abdul Hamid Mulla (Dead) by Lrs. and others vs. Special Land .
Acquisition Officer and others, (2012) 7 SCC 595, and placed reliance on the observations recorded in para 19 thereof. Having given our thoughtful consideration to the position expressed in paragraph 19, it is apparent, that while fixing the market value of the acquired land, which may be undeveloped or underdeveloped, the courts have approved deduction of 1/3rd of the market value towards development cost, "except when", no development is required to be made for implementation of the public purpose for which land is acquired. Admittedly, the public purpose in the instant case is to raise a school and to provide for play-grounds, for the students to be enrolled in the school."
25. Even otherwise, market value of the acquired land, which has been assessed by the learned Reference Court as Rs.
55,000/- per biswa, has not been assailed by the respondents, either by filing the appeal or cross-objections. Meaning thereby, whatsoever decided by the learned Reference Court, has been accepted by the respondents.
26. A coordinate Bench of this Court in RFA No. 324 of 2008, titled as, 'Sh. Lakshmi Ram & others versus State of H.P. & others', decided on 20.5.2015, has also held that the ::: Downloaded on - 25/04/2024 21:42:10 :::CIS 11 deduction of the development charges, in case of laying sewerage pipelines, is not sustainable, in the eyes of law. Relevant paragraph-5 of the judgment is reproduced as under:
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"5. On analyzing the rival submissions and also the evidence available on record, it is apparent that land bearing Khasra No. 161/1 measuring 0-02-22 hectares belonging to the appellants-petitioners has been acquired for lying sewerage line situated in village Chak Jungle Tutikandi. Reference to this effect can be made to the Notification under Sections 4, 6 and 7 of the Land Acquisition Act. Reference in this regard can be made to the award statement showing the compensation paid, available in trial Court record. On behalf of the petitioners, sale instances Ext. PW-1/A and Ext. PW- 2/A have been pressed into service. Ext. PW-1/A is the sale deed dated 28th January, 2002. The same has been proved by PW-1 Sewak Ram who thereby has sold four biswas of land to one Smt. Ganga Dassi in a sum of 1,25,000/-. Similarly, sale deed dated 30th April, 2001 Ext. PW2/A has been proved by PW-2 Jia Lal, who thereby has sold four biswas of land in a sum of ₹1,47,500/-. It is seen that the sale instance Ext. PW-1/A being dated 28th January, 2002 is in proximity with the Notification under Section 4 of the Act, which has been issued on 8th May, 2003. As per this document, four biswas of land has been sold in a sum of 1,25,000/-. The market value of the land so sold comes to ₹31,250/- per biswa. No doubt, as per Ext. PW-2/A, the market value of four biswas of land was Rs. 1,47,500/-, however, it would not be proper to place reliance thereon. Now, coming to the question that the sale instance Ext. PW- 1/A pertains to sale of small chunk, it would not be improper to conclude that even the acquired land of various right ::: Downloaded on - 25/04/2024 21:42:10 :::CIS 12 holders also was not in big chunks, however, area thereof is also very small. The Apex Court in (2003) 12 Supreme Court Cases 334 titled 'Land Acquisition Officer, Kammarapally, Village Nizamabad District, A.P versus Nookala Rajamallu and others' has held that the rates of small plots can only be .
taken into consideration subject to necessary deductions/adjustments i.e. towards developmental charges etc. In this case when the land has been acquired for lying sewerage line, no Investment is required to be made on developmental activities like creation of parks, roads, drains etc. etc. Otherwise also, Chak Jungle Tutikandi is nearby Shimla town and surrounded by forests and hills.
There is no question of sale of big chunks of land in that area. Therefore, placing reliance on the sale instance Ext. PW- 1/A, this Court determines the market value of the acquired land @ ₹31,250/- per biswa, I am not in agreement with learned trial Court that this sale instance being of village Bihar and that the acquired land is situated in village Jungle Tutikandi, cannot be relied upon for the reason that the Collector himself while making the award has assessed the market value of the land on the basis of average sale price of the land in village Bihar. Otherwise also, both villages are adjoining to each other. It has been so mentioned by the Collectir in the award No. 22 of 2005 passed in this case. Not only this, but the Collector has also noticed that no sale instance has taken place in village Jungle Tutikandi within a period of one year preceding Notification under Section 74 of the Act. Learned trial Court, therefore, has erred in law in not placing reliance on the sale Instance Ext. PW-1/A. The impugned award is, therefore, quashed and set aside. The market value of the acquired land is determined at the rate of ₹31,250/- per biswa.
(Self emphasis supplied) ::: Downloaded on - 25/04/2024 21:42:10 :::CIS 13
27. In view of above, this Court is of the considered opinion that the learned Land Reference Court has wrongly deducted the development charges of 45%, out of the market .
value of the acquired land, which was assessed @ Rs. 55,000/-
per biswa.
28. With these observations, the impugned award is modified, by holding that the market value of the acquired land was Rs.55,000/- per biswa, at the time of issuance of notification, under Section 4 of the Act. In addition to this, the petitioners are also entitled for the statutory benefits, which were granted to them, by the learned Reference Court.
29. No other point has been urged or argued.
30. In view of above, the present appeals are partly allowed. Memo of costs be prepared, accordingly.
31. The pending application(s), if any, are also disposed of.
32. Record be sent down.
(Virender Singh) Judge 25.4.2024 Kalpana ::: Downloaded on - 25/04/2024 21:42:10 :::CIS