Himachal Pradesh High Court
Kanti Sawroop & Ors vs State Of H.P. & Ors on 23 April, 2024
Bench: Mamidanna Satya Ratna Sri Ramachandra Rao, Jyotsna Rewal Dua
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.F.A. No. 89 of 2015 alongwith R.F.A. No. 160 of 2015 Reserved on : 19.03.2024 .
Date of decision : 23.04.2024
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1. RFA No. 89 of 2015 Kanti Sawroop & Ors. ..Appellants Versus State of H.P. & Ors. ..Respondents
2. RFA No. 160 of 2015 State of H.P. & Ors. ..Appellants Versus Kanti Sawroop & Ors. ..Respondents
------------------------------------------------------------------------------------- Coram :-
The Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge Whether approved for reporting? Yes1 ____________________________________________________ Mr. Sudhir Thakur, Senior Advocate, with Mr. Somesh Sharma, Advocate, for appellants No. 1 to 7 in RFA No. 89 of 2015.
Mr. Kulwant Singh Katoch, Advocate, for applicant/appellant No. 8 in RFA No. 89 of 2015.
Mr. Anup Rattan, Advocate General with Mr. Rakesh Dhaulta, Mr. Pranay Pratap Singh, Additional Advocates General, Mr. Arsh Rattan ::: Downloaded on - 23/04/2024 20:35:10 :::CIS 2 and Mr. Sidharth Jalta, Deputy Advocates General for the State- respondents in RFA No. 89 of 2015.
Mr. Anup Rattan, Advocate General with Mr. Rakesh Dhaulta, Mr. Pranay Pratap Singh, Additional Advocates General, Mr. Arsh Rattan and Mr. Sidharth Jalta, Deputy Advocates General for the appellants-
.
State in RFA No. 160 of 2015.
Mr. Sudhir Thakur, Senior Advocate, with Mr. Somesh Sharma, Advocate, for respondents No. 1 to 7 in RFA No. 160 of 2015.
Mr. Kulwant Singh Katoch, Advocate, for respondent No. 8 in RFA No. 160 of 2015.
------------------------------------------------------------------------------------ Jyotsna Rewal Dua, Judge The State as well as the land owners, both sets are aggrieved by the award passed by the learned Reference Court on 09.09.2014.
Hence, these two appeals have been preferred.
For convenience, the State (appellant in RFA No. 160 of 2015) and land owners (appellants in RFA No. 89 of 2015) are being referred to hereinafter according to their status before the learned Reference Court. The State is being referred to hereinafter as the "respondents" and the land owners as the "petitioners".
2. Facts common to both the appeals.
2(i) Petitioners' land measuring 17 biswas in all situated in village Shamti, Tehsil and District Solan was acquired by the respondents-State for construction of Solan-Meenus road. Out of 17 biswas, 14 biswas was comprised in Khasra No. 414/124/1, 2 biswas in Khasra No. 330/122/1 and 1 biswa was comprised in Khasra No. ::: Downloaded on - 23/04/2024 20:35:10 :::CIS 3 330/122/2. The classification of land in these khasra numbers in the revenue record was as under :-
414/124/1 (0-14 biswas) Ghasni (Grazing land) .
330/122/1 (0-2 biswas) Charandh (Meadow)
330/122/2 (0-1 biswa) Charandh (Meadow)
Total 0-17 biswas
2(ii) The Land Acquisition Collector (LAC) passed the award on 05.10.2010. For determining the market value of land, one year average market value of all kinds of lands situated in Mauza Shamti immediately before the issuance of notification under Section 4 of the Act, was procured by the field staff. The same was sent to the District Collector Solan for approval. The District Collector Solan approved the one year average market value of lands in Mauza Shamti on 10.11.2009. The approval was as per classification of land. Rs.
1,52,049.90 per biswa was approved as one year average market value of Ghasni (grazing land). On that basis, market value of the acquired land under Section 23(1) of the Act was determined as Rs. 25,84,849/-.
12% additional amount on market value of land w.e.f. 20.06.2009 to 31.08.2010 i.e. Rs. 3,62,870/- was also allowed. Rs. 7,75,455/- towards 30% solatium was also awarded. The total payable compensation was worked out at Rs. 37,23,174/-.
::: Downloaded on - 23/04/2024 20:35:10 :::CIS 42(iii) The petitioners demanded more compensation for their acquired land, therefore, reference was made under Section 18 of the Land Acquisition Act before the learned District Judge Solan.
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Petitioners' contention before the learned Reference Court was that market value of the land at the time of publication of notification under Section 4(1) of the Act was Rs. 75,00,000/- per biswa; The entire acquired land should have been assessed as a single unit at one & same rate of Rs. 75,00,000/- per biswa irrespective of its kind mention in the revenue record. Interest on certain components and some other benefits allegedly not made available to the land owners under the Act, were also claimed.
The respondents-State defended the award passed by the LAC.
It denied that market value of land was Rs. 75,00,000/- per biswa or that the land compensation should have been assed as single unit at the highest rate irrespective of its classification mentioned in the revenue record.
Sh. Kanti Sawroop appeared for the petitioners as PW-1. The award passed by the LAC was produced by him as Ex. PX.
Sh. Bhagat Ram Sharma, Assistant Engineer, HP PWD appeared for the respondents as RW-1. He also produced a registered sale deed No. 997/2007, dated 28.02.2007 (Ex. RW-1/B) under which 5 biswas of land (grazing land) was sold for Rs. 5,00,000/- in village Shamti.
::: Downloaded on - 23/04/2024 20:35:10 :::CIS 52(iv) On consideration of entire material on record, learned Reference Court held that as per award Ex. PX, different types of land had been sold on different dates, therefore, it would be reasonable to .
calculate average market value of the land on the basis of following rates mentioned in Ex. PX.
Sr. No. Classification of land Rate per Bigha
1. Kuhal 11,35,30,592.00
2. Katul 7,60,24,950.00
3. Bangar Awal 5,67,65,296.00
4. Bangar Doyam 3,75,05,642.00
6. Banjar Kadim 91,22,994.00 7. r Ghasni 30,40,998.00 Market compensation by averaging above total value was thus calculated as Rs. 29,59,90,472 ÷ 7 = Rs. 4,22,84,353/- per bigha.
Deduction of 50% per bigha of market value was allowed towards costs of development. The total market value per bigha of land was thus calculated as Rs. 2,11,42,177.
In this manner, market value of petitioners' 17 biswas of acquired land was calculated as Rs. 1,79,70,850/-. The petitioners were also held entitled to solatium @ 30% i.e. Rs. 53,91,255 under Section 23(2) of the Act and statutory interest @ 12% p.a. under Section 23(1) (A) w.e.f. 26.08.2009 till 05.10.2010 and further interest @ 9% per ::: Downloaded on - 23/04/2024 20:35:10 :::CIS 6 annum under Section 28 of the Act on the excess compensation amount from 26.08.2009 till payment of the said amount.
3. Submissions .
Both the appellants i.e. the State as well as land owners have grievances with regard to determination of market value of the land.
According to learned senior counsel for the petitioners, the rate of highest quality of land should have been made the basis for determining the market value of acquired land, whereas State's contention is that the approach of the learned Reference Court in calculating the average market value of the land by clubbing the market value of all kinds of land in village Shamti for determining the market value of the acquired land was wholly erroneous.
Another bone of contention for the petitioners is 50% deduction from market value of land ordered by the reference Court towards development cost. Learned senior counsel in support of his plea that market value should have been assessed on the basis of prevalent market value of the highest quality of the land irrespective of the classification of land and without any deduction has relied upon AIR 1998 (HP) 9 (Smt. Gulabi and etc. Vs. State of H.P.), AIR 1992 SC 2298 (Bhagwathula Samanna and others Vs. Special Tahsildar and Land Acquisition Officer, Visakhapatnam Municipality), AIR 1998 ::: Downloaded on - 23/04/2024 20:35:10 :::CIS 7 SC 781 (Land Acquisition Officwer, Revenue Divisional Officer, Chittoor Vs. Smt. L. Kamalamma (dead) by Lrs. And others).
4. Consideration .
4(i) Market Value 4(i)(a) It is well settled that market value of land is to be assessed as a single unit irrespective of its nature and classification ignoring the purpose to which it was being put to prior to the acquisition.
However, in the instant case, there is no evidence available on record to suggest that land of the nature other than grazing land/meadow was subject matter of acquisition for the purpose of constructing Solan-Meenus road. No document evidencing acquisition of land of any other classification has been placed on record. There is only one sale deed on record that was produced by the respondents-
State. By putting forth this sale deed, the respondents had sought to lower down the market value of the acquired land that was determined by the LAC.
It is well settled that in terms of Section 25 of the Act, total amount of award granted by the Collector cannot be reduced.
Hence, this sale deed produced by the respondents was rightly not taken into consideration by the learned Reference Court.
There is no evidence on record to suggest that land of higher quality fetching higher market rate was the subject matter of the ::: Downloaded on - 23/04/2024 20:35:10 :::CIS 8 acquisition for the purpose for which the land in question was acquired.
The learned Reference Court, therefore, clearly fell in error in averaging market value of different kinds of land to assess the market .
value of the acquired land. The nature of acquired land was Ghasni (grazing land). As per the approved market rate mentioned in Ex. PX, value of 1 biswa of Ghasni land in village Shamti was Rs. 1,52,049.90.
The LAC was justified in determining market value of 17 biswas of grazing land on this basis i.e. Rs. 1,52,050 x 17 = Rs. 25,84,850/-. We hold accordingly.
4(i)(b) Learned senior counsel for the petitioners next endeavoured to make reference to certain decisions passed by this Court in some other Regular First Appeals for submitting that in those appeals also, the land was acquired for the purpose for which the land in the instant case was acquired. Therefore, the market value of the land as assessed in the awards under consideration in those appeals should be taken into consideration while deciding the instant appeals. We are afraid, this contention lacks merit.
In 2018 (13) SCC 96 (Manoj Kumar and others Vs. State of Haryana and others), the Apex Court held that an award/judgment cannot be taken into consideration while hearing arguments unless they form part of evidence in the case. The previous awards/judgments are only piece of evidence at par with comparative sale transaction.
::: Downloaded on - 23/04/2024 20:35:10 :::CIS 9Similarity of the land covered by previous judgments/awards is required to be proved like any other comparative exemplar. In absence of evidence, the previous awards/judgments of the Court cannot be said .
to be binding. The determination of compensation in each case depends upon the nature of land and the evidence adduced in each case. To rely upon judgments/awards in case it does not form part of evidence recorded by the learned Reference Court, an application under Order 41 Rule 27 of the Civil Procedure Code is to be filed to adduce evidence and if it is allowed, opposite party has to be given an opportunity to lead evidence in rebuttal. In view of aforesaid legal position, reliance placed by learned senior counsel for the petitioners upon certain awards said to be subject matter of some other Regular First Appeals, is misplaced.
In view of above discussion, we hold that in the facts of instant case, learned Reference Court erred in determining the market rate of the acquired land by calculating the average market value of all kinds of land irrespective of classification. In the instant case, the nature of land acquired is Ghasni (grazing land) and there is no evidence on record to suggest acquisition of land of any other kind, therefore, the market value of the acquired land was to be determined by taking into consideration the market value of grazing land only. The market value was correctly determined by the LAC.
::: Downloaded on - 23/04/2024 20:35:10 :::CIS 104(ii) Deductions Learned Reference Court has ordered 50% deduction from the assessed market value of the acquired land towards cost of development .
of land. After hearing the submissions of learned counsel on both sides, in our considered view, instant was not a case calling for 50% deduction. The land was acquired for Solan-Meenus road. It was not acquired for housing or commercial purposes.
In (2003) 1 SCC 354 (Kasturi and others Vs. State of Haryana), the Apex Court held that there may be various factual factors which may have to be taken into consideration while deducting the compensation towards developmental charges. In some cases, deduction it may be more than 1/3rd and in some cases less than 1/3rd.
There is difference between a developed area and an area having potential value, but is yet to be developed. The fact that an area is developed or adjacent to a developed area will not ipso facto make every land situated in the area also developed to be valued as a building site or plot, particularly when vast tracks are acquired for development purposes.
Deductions for development consist of two components. The first is with reference to the area acquired to be utilized for developmental works and the second is the cost of developmental work.
::: Downloaded on - 23/04/2024 20:35:10 :::CIS 11(Re: [(2009) 15 SCC 769 ( Lal Chand Vs. Union of India and another)].
While deciding Civil Appeal No. 399-4000 of 2011 (Mala etc. .
Vs. State of Punjab and others), decided on 17th August, 2023, the Apex Court reiterated that while determining the deduction for development charges, the Court should keep in mind the nature of land, area under acquisition, whether the land is developed or not, if developed, to what extent, the purpose of acquisition etc. The percentage of deduction or the extent of area required to be set apart has to be assessed by the Courts having regard to the size, shape, situation, user etc. of the land acquired. It is essentially a kind of guess-work, the Courts are expected to undertake.
In the instant case, the land has been acquired for building a road. It is not for purpose of any housing or commercial purposes. In our view, deduction of 10% as developmental charges would suffice.
Ordered accordingly.
4(iii) Left out benefit components A submission has been made for the petitioners that 15% interest admissible to them under Section 34 of the Act has been wrongly denied to them by the learned reference Court. The Section reads as follows :-
::: Downloaded on - 23/04/2024 20:35:10 :::CIS 12" 34. Payment of interest.-When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of [nine per centum] per annum from the time of so taking possession until it shall have been so paid or deposited:
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Provided that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry."
4(iii)(a) In (2007) 9 SCC 650 (Madishetti Bala Ramul (Dead) by Lrs. Vs. Land Acquisition Officer) relying upon (2004) 4 SCC 79 (R.L. Jain (D) by LRs. Vs. DDA and others), Section 34 of the Act was clarified by reiterating that 'if possession is taken prior to the issuance of notification under Section 4(1), it would not be in accordance with Sections 16 or 17 and will be without any authority of law and consequently cannot be recognized for the purposes of the Act.
For parity of reasons, the word 'from the date on which he took possession of the land' occurring in Section 28 of the Act would also mean lawful taking of possession in accordance with Sections 16 or 17 of the Act. The words 'so taking possession' can under no circumstances mean such dispossession of the owner of land which has been done prior to the publication of notification under Section 4(1) of the Act which is dehors the provisions of the Act.' ::: Downloaded on - 23/04/2024 20:35:10 :::CIS 13 It was further observed that 'In a case where the land-owner is dispossessed prior to the issuance of preliminary notification under Section 4(1) of the Act, the Government merely takes possession of the .
land, but the title thereof continues to vest with the land-owners. It is fully open for the land-owner to recover possession of his land by taking appropriate legal proceedings. He is, therefore, only entitled to get rent or damages for use and occupation for the period the Government retains possession of the property. Where possession is taken prior to the issuance of notification under Section 4, it will be just and equitable that the Collector may also determine the rent or damages for use of the property to which the land-owner is entitled while determining the compensation amount. For delayed payment of such amount, appropriate interest at prevailing bank rate may be awarded.' (1991) 1 SCC 262 (Shree Vijay Cotton & Oil Mills Ltd. Vs. State of Gujarat) was also quoted, wherein it was held that 'A plain reading of Section 34 shows that interest is payable only if compensation which is payable, is not paid or deposited before taking possession. Question of payment or deposit of compensation will not arise if there is no acquisition proceeding. In case where possession is taken prior to acquisition proceedings, a party may have a right to claim compensation or interest. But, such a claim would not be either under Section 34 or Section 28 of the Act. Interest under these sections can ::: Downloaded on - 23/04/2024 20:35:10 :::CIS 14 only start running from the date the compensation is payable. Normally this would be from the date of the award.
After enunciating the above legal position, the Apex Court .
noticed that in facts of that case (Madishetti Bala), the land-owners were dispossessed pursuant to a notification under Section 4 of the Act which could not be given effect to. Another notification under Section 4 had to be issued. Holding that possession must be obtained under a valid notification, it was observed though proper course would have been to remand the matter to Collector to determine amount of compensation to which the land-owners would be entitled for being out of possession, but in the peculiar facts & circumstances additional interest @ 15% p.a. on the awarded amount was allowed for the period to meet ends of justice.
In (2016) 13 SCC 412 (Balwan Singh and others Vs. Land Acquisition Collector & Another), Apex Court reiterating the view taken in (2004) 4 SCC 79 (R.L. Jain (D) by LRs. Vs. DDA & Others) held that land-owner is not entitled to interest under the Act but he is entitled to get rent or damages for use and occupation for the period the Government retained the possession of the property.
In (2014) 13 SCC 613 (Tahera Khotoon & others Vs. Revenue Divisional Officer/Land Acquisition Officer & others), possession of land concerned was taken by the Municipal Committee ::: Downloaded on - 23/04/2024 20:35:10 :::CIS 15 on 01.01.1938 for developing it into a park. Subsequently, notification under the Land Acquisition Act was issued on 10.01.1996. A claim was made before the Apex Court for entitlement of land-owners to .
rent/damages from the date of dispossession till the date of notification.
Taking note of judgments in R.L. Jain's case (supra), where the matter for this purpose was remanded to the LAO and the judgment in Madishetti's case (supra), where instead of remanding the matter to the LAO, 15% interest was awarded towards rent/damages from the date of preliminary notification, the Apex Court directed the State Government to pay rent/damages @ 15% on the compensation awarded from the date the land-owners were dispossessed i.e. 01.01.1938 till the issuance of preliminary notification i.e. 10.01.1996.
4(iii)(b) In the instant case, petitioners have alleged that possession of their land was taken by the respondents somewhere in the year 1956.
Respondents have denied this allegation. Learned reference Court framed following issue in this regard :-
"2. Whether the Land Acquisition Collector has not paid interest and incentives as required law and the possession of the land in question had already been taken by the respondents in the year 1956, as alleged ?
...OPP"
As per the finding returned by the learned reference Court, possession of land in question was taken over by the State prior to the issuance of notification under Section 4 of the Act. Though the finding ::: Downloaded on - 23/04/2024 20:35:10 :::CIS 16 on issue No. 2 has been answered in the affirmative, however, no date of taking over the possession of concerned land is decipherable either from the award or the record. Also there is no evidence about damages, .
if any, suffered by the land-owners as well as the steps taken by them to claim such damages/re-claim possession of land. It is also a fact that preliminary notification under Section 4 of the Act was issued only on 26.08.2009.
Keeping in view the legal position enunciated by the Hon'ble Apex Court in R.L. Jain's and Medishetti's cases (supra) as well as the facts of instant case, in our considered view, learned reference Court was justified in holding that benefit under Section 34 of the Act claimed by the petitioners cannot be allowed to them as taking over the possession cannot mean such dispossession of the land-owners which is prior to publication of notification under Section 4 of the Act i.e. dehors the provision of the Act.
No other point was urged before us.
5. Result In view of above discussion, we hold and order as under :-
(i) In the given facts & evidence on record, learned LAC in his award Ex. PX has justifiably determined the market price of the acquired 17 biswas of land classified as grazing land on the basis of approved market rate for such type of land. The same is ::: Downloaded on - 23/04/2024 20:35:10 :::CIS 17 affirmed. The award dated 09.09.2014 passed by learned reference Court to the extent it determined market price of acquired land by averaging market value of all kinds of land in .
mauza Shamti, in absence of any evidence that land other than grazing land was subjected to acquisition, is held illegal & set aside.
(ii) The impugned award passed by learned reference Court to the extent it allowed 50% deduction from the market value towards development cost is also set aside. Looking into the facts & purpose for which land was acquired, we order 10% deduction from the assessed market value.
(iii) Remaining part of impugned award dated 09.09.2014 passed by learned reference Court is affirmed.
(iv) The respondent-State is directed to work-out the amount in terms of above directions & pay the balance amount, if any, on that basis to the petitioners (land-owners) within two months.
Both the appeals are disposed off in terms of above directions.
Pending applications, if any, also stand disposed off.
M.S. Ramachandra Rao,
Chief Justice
23rd April, 2024 (K) Jyotsna Rewal Dua
Judge
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