Himachal Pradesh High Court
Himachal Pradesh State Electricity ... vs Smt. Ganga And Others on 22 June, 2016
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No.265 of 2012 Date of Decision : June 22,2016 .
Himachal Pradesh State Electricity Board ...Appellant.
versus Smt. Ganga and others ...Respondents.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
of For the Appellant : Mr. Satyen Vaidya, Senior Advocate, with Mr. Vivek Sharma, Advocate.
For the Respondent
rt : Mr. Ashwani K. Sharma, Senior
Advocate, with Mr. Nishant Thakur, Advocate.
Sanjay Karol, Judge CMPs(M) No.695 & 696 of 2016 For the reasons set out in the application (CMPM No.696/2016), which have been sufficiently explained, delay in filing the application (CMPM No.695/2016) for bringing on record LRs of deceased respondent No.1 Ganga Devi, is condoned and the proposed LRs, as mentioned in the application (CMPM No.695/2016) are ordered to be brought on record in place of the deceased respondent. Abatement, if any, also stands set aside. Applications stand disposed of.::: Downloaded on - 15/04/2017 20:38:20 :::HCHP
...2...RFA No.265/2012
2. With the consent of the parties, the present appeal itself is taken up for hearing.
.
3. In the instant appeal, appellant Himachal Pradesh State Electricity Board has challenged the award dated 5.11.2011, passed by learned Additional District Judge, Mandi in Reference No.41/2006, titled as Smt. Ganga of and another v. Collector, Land Acquisition, which was disposed of vide common judgment dated 5.11.2011, passed in Reference No.46/2006, titled as Roop Chand v.
rt Collector, Land Acquition, and other connected matters.
4. Certain facts are not in dispute. 105 bighas of land came to be acquired for a public purpose, namely construction of Uhl Pan Vidyut Pariyojna Stage-III. The land is situate in village Chullah, Tehsil Lad-Bharol, District Mandi, Himachal Pradesh. The entire land stands utilized for the said purpose.
5. Land acquisition proceedings commenced with the issuance of Notification dated 31.5.2003, under the provisions of Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act), so published in the H.P. Rajpatra. Award dated 29.6.2005, under Section 11 of the Act came to be passed, with the Collector, Land Acquisition, ::: Downloaded on - 15/04/2017 20:38:20 :::HCHP ...3...
determining the market value of the acquired land as under:
1. Barani Awal = `3,00,000/-
.
2. Barani Doem = `2,00,000/-
3. Banjar Kable Kashat = `1,50,000/-
4. Banjar Kadeem, Khadyatar & Gair mumkin = `1,00,000/-
6. Aggrieved thereof, land owners filed various petitions, under the provisions of Section 18 of the Act, of which came to be consolidated and Land Reference No.46/2006, titled as Roop Chand v. Collector, Land Acquisition was directed to be treated as a lead case and rt evidence led therein.
7. In terms of the impugned award, the market value of the entire land stands re-determined at the rate of `14,035/- per biswa (20 biswas = 1 bigha), regardless of the category and classification of the acquired land.
8. Claim set up by the claimants for determining the market value at the rate of `8,00,000/- per bigha came to be rejected.
9. Correctness of the impugned award is subject matter of challenge in this appeal, so filed by the acquirer/ beneficiary.
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10. Having heard learned counsel for the parties as also perused the record, no case of interference with the impugned award is made out.
.
11. It is also a settled principle of law that the claimants have to establish their case by leading clear, cogent, convincing and reliable piece of evidence. Such evidence has to be within the meaning and scope of Section of 3 and other relevant provisions of the Indian Evidence Act.
Only such evidence so proven in accordance with law, which is admissible is required to be considered by the Court.
rt
12. To establish their claim, claimants examined three witnesses, i.e. Sohan Singh (PW-1), Yash Pal (PW-2) and Gandhi Ram (PW-3); and the beneficiary examined four witnesses, i.e. Raj Pal (RW-1), Ramesh Chand (RW-2), Acchar Singh (RW-3) and Subhash Chand (RW-4). Perusal of testimonies of these witnesses reveals the following facts:
land is situated on the Baijnath-Neri-Sarkaghat link road, which came to be constructed subsequent to the acquisition proceedings, but however, the acquired land was at a walking distance from the motorable road and had potential of being put to agriculture/horticulture use. Trees had been planted for commercial purpose. The acquired land is just at a distance of 2 kms from the Baijnath-Neri-Sarkaghat ::: Downloaded on - 15/04/2017 20:38:20 :::HCHP ...5...
road. As such, the Court below rightly valued the acquired land by uniformly applying same rate, in view of the law laid down by the apex Court in Haridwar Development Authority .
v. Raghubir Singh, 2010 (11) SCC 581.
13. 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 for carrying out any developmental activity, then the claimants of are entitled for compensation for the entire acquired land, at uniform rates, regardless of its categorization.
14. The apex Court in Haridwar Development rt 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.
15. 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.
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16. 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 question of any development thereof.
17. This Court, in Gulabi and etc. vs. State of H.P., of AIR 1998 HP 9, where the land was acquired for the purpose of construction of National Highway-21, held that the claimants would be entitled to compensation uniformly for rt all classes of land irrespective of its classification or quality.
I am conscious that the facts are different in the instant case and the principle laid down therein cannot be applied stricto sensu. But however, this principle was followed and accepted by this Court in H.P. Housing Board vs. Ram Lal & Ors. 2003(3), Shim. L. C. 64, wherein the land was acquired for the purposes of setting up of a Housing Colony by the respondent authority itself. The Court held that:
"27. When the land is being developed for a housing colony, as in the present case, classification completely looses significance. Reason being that it has to be developed as a single unit i.e. for housing colony. Similarly allowing higher price for land near the road and for the one which is at a distance from the road ::: Downloaded on - 15/04/2017 20:38:20 :::HCHP ...7...
also does not provide any reasonable, muchless rational basis to allow less price for the area. Reason being that a person may be interested to reside near the road side in a developed .
colony for so may reasons. Whereas another, may like to live in the vicinity which is away from the road to avoid husble and bustle of being near the roadside and for many other reasons. In these circumstances it cannot be said that location of the land and its distance of from the road is a good criteria and/ or for that matter classification for the assessment of compensation. In my view entire land under rt acquisition should have been assessed at Rs.200 per sq. meter irrespective of its classification and/ or distance from the road."
28. Faced with this situation, Mr. Deepak Gupta, Advocate, on behalf of Housing Board submitted, that it is matter of common knowledge that plots situated on the roadside carry higher price, as compared to the plots which are away from the road. This argument cannot be accepted in view of the decision of the Supreme Court reported in the case of Land Acquisition Officer Revenue Divisional Officer, Chittor v. L. Kamlamma (Smt.) Dead by LRs and others K. Krishnamachari and others, (1998) 2 SCC 385. What was held and is relevant was as under:-
"7. The argument advanced by Shri Nageswara Rao that the classification by the ::: Downloaded on - 15/04/2017 20:38:20 :::HCHP ...8...
Land Acquisition Officer was in order and ought not to have been interfered with by the reference court or the High Court does not appeal to us. When a land is acquired which has .
the potentiality of being developed into an urban land, merely because some portion of it abuts the main road, higher rate of compensation should be paid while in respect of the lands on the interior side it should be at lower rate may not stand to reason because of when sites are formed those abutting the main road may have its advantages as well as rt disadvantages. Many a discerning customer may prefer to stay in the interior and far away from the main road and may be willing to pay a reasonably higher price for that site. One cannot rely on the mere possibility so as to indulge in a meticulous exercise of classification of the land as was done by the Land Acquisition Officer when the entire land was acquired in one block and, therefore, classification of the same into different categories does not stand to reason."
18. This 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 was dismissed by the Apex Court on 16.8.2004.
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19. 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 uniformly irrespective of its nature and quality, also awarded of compensation on uniform rates.
20. It is a matter of fact that the entire land was put to public purpose. Project stood constructed thereupon.
rt 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.
21. Further, the question, which arises for consideration, is as to whether there was any cogent material before the Court below, for re-determining the market value, in terms of the impugned award. It be only observed that with regard to one category, i.e. Barani Awal, the amount stands reduced by `965/- per biswa, which fact stands accepted by the claimants, for they otherwise stand satisfied with the uniform determination of the value.
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22. Record reveals that parties have produced on record various sale deeds, particulars whereof, in a tabulated form, are reproduced as under:
.
Sale deed Dated Muhal Area in Price Price per
Bigha biswa
Ext.P.1 5.10.2002 Chulla 0-0-19 `20,000/- `21052.63/-
Ext.P.2 24.03.2004 Chulla 0-0-18 `55,000/- `61,111,11
Ext.P.3 29.09.1992 Sanahali 0-1-15 `51,000/- `29,142.85
Ext.RW.4/A 4.01.2001 Chulla 0-1-18 `300/- `157.89/-
Ext.RW.4/B 28.11.2006 Chulla 0-8-16 `43,500/- `4943.18/-
Ext.RW.4/C 8.12.2006 Chulla 0-8-16 `43,500/- `4943.18/-
Ext.RW.4/D 24.04.2008 Chulla 0-7-0 `18,500/- `2642.86/-
of
Ext.RW.4/E 05.10.2002 Chulla 0-0-19 `20,000/- `21052.63/-
23. Significantly, both the claimants and the
beneficiary/acquirer have relied upon same sale deed, rt being Ex.P-1 and Ex.RW-4/E. Record reveals that similarity, with regard to potential use of the acquired land with the exemplar sale deed, stands proved on record through the testimonies of the witnesses. This sale deed is closer to the time of the commencement of the acquisition proceedings.
It is not the case of the acquirer that such sale deed stood executed in anticipation of any acquisition proceeding. It is also not the case of the acquirer that the said sale deed is not genuine. Most of the remaining sale deeds produced by the acquirer pertain to the years 2006 to 2008 and in the teeth of sale deed Ex. RW-4/A do not depict true market value. Sale deed (Ex.RW-4/A) also was not proved on record in accordance with law. Neither the vendor nor the ::: Downloaded on - 15/04/2017 20:38:20 :::HCHP ...11...
vendee have proved the same to establish the factum of similarity and potential with the acquired land.
24. It is not in dispute that common exemplar sale .
deed relied upon by the parties pertained to a small chunk of land and the acquired land is a large track. It is for this reason that the Court below rightly applied the principle of deduction to the extent of 1/3rd for determining the fair and of correct market value of the acquired land. This is, in view of the settled principles of law laid down by the apex Court in Sai Banna rt v. Assistant Commissioner and Land Acquisition Officer, (2009) 9 SCC 409 and Haridwar Development Authority (supra).
Hence, in the given facts and circumstances, no interference is warranted. It cannot be said that the findings returned by the Court below are perverse, illegal or erroneous. As such, present appeal stands dismissed.
Pending application (s), if any, also stand disposed of.
( Sanjay Karol ),
June 22, 2016(sd) Judge.
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