Himachal Pradesh High Court
Ntpc Limited vs Mehar Chand & Others on 15 December, 2016
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COU RT OF HIMACHAL PRADESH SHIMLA RFA No. 339 of 2014 .
Date of Decision: December 15, 2016.
NTPC Limited, Kol Dam. ...Appellant.
Versus Mehar Chand & others. ...Respondents. Coram:
of The Hon'ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1No. For the Appellant: Mr. Chandernarayan Singh, rt Advocate, for the appellant-NTPC.
For the Respondents: M/s Aman Sood and Varun Rana, Advocates, for respondents No.1 to 8.
Mr. R.S. Verma, Addl. AG., for respondent No.9-State.
Sanjay Karol, J (oral).
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 only marginal. The rates stand increased from `3,43,199.00 to `5,00,000/- per bigha.
2. In terms of award No.48 of 2006, Collector Land Acquisition, determined the market value of the 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:45:35 :::HCHP 2acquired land, awarding different rates, classification/category wise, ranging from `76,240/- to `3,43,199/- per bigha.
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3. In terms of the impugned award dated 22.03.2014, passed by Additional District Judge, Mandi (Camp at Sunder Nagar), District Mandi, H.P., in Reference Petition No.71 of 2008, titled as Mehar Chand of and others Versus LAC, Kol Dam Project, Bilaspur and another, the Reference Court re-determined the market value of the entire acquired land, irrespective of its rt category/classification, by uniformly awarding a sum of `5,00,000/- per bigha and while doing so, it referred to and relied upon exemplar sale deeds (Ex.PW.1/B, Ex.PW.1/C and Ex.PW.1/D), proved on record by the claimants' witnesses, namely, Mehar Chand (PW.1) and Khem Raj (PW.2).
4. Certain facts are not in dispute: (i) 32-7-16 bighas (reduced from original area 53-16-3 bighas) of land came to be acquired in village Panjolth, Tehsil Sundernagar, District Mandi, H.P., with the publication of notification in the official gazette on 19.11.2000, so issued under Section 4 of the Land Acquisition Act, 1894 ::: Downloaded on - 15/04/2017 21:45:35 :::HCHP 3 (hereinafter referred to as the Act); (ii) The acquisition proceedings concluded with the passing of Collector's award No. 48 of 2006 dated 29.04.2006, under Section .
11 of the Act and the State taking over possession of 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 of under Section 18 of the Act, which came to be clubbed (with Reference Petition No.71 of 2008) and on the basis of common evidence led by the parties, disposed of in rt terms of the impugned award; (v) While the claimants accepted the award, only the beneficiary preferred the appeal(s) under Section 54 of the Act; (vi) It is the common case of the parties that the entire acquired land came to be submerged with the construction of the Dam by the beneficiary. Also there is no evidence on record of either any requirement or any developmental activity carried out on the spot.
5. It is contended on behalf of the claimants that since they have not assailed the impugned award, as such, they are satisfied with the market value, so determined by the Reference Court.
::: Downloaded on - 15/04/2017 21:45:35 :::HCHP 46. With these admitted/undisputed facts, material placed on record by the parties is being appreciated for just decision of the case.
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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 Collector, is always upon the claimants.
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8. Perusal of the Collector's award reveals that the claimants themselves claimed compensation @ `10,00,000/-
rt 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 Reference Court.
::: Downloaded on - 15/04/2017 21:45:35 :::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, M/s Aman Sood and Varun Rana, learned counsel, seek reliance on the decision rendered by the Apex Court in Chimanlal Hargonvinddas rt 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 offer made by the Land Acquisition Officer and the ::: Downloaded on - 15/04/2017 21:45:35 :::HCHP 6 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 original proceeding before it and determine the of 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 rt 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 21:45:35 :::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 21:45:35 :::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.
2. Proximity to a road. 2. situation in the interior of at a distance from the road.
3. frontage on a road. 3. narrow strip of land with very small frontage compared to depth.
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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 compared with a large tract or block of land of say ::: Downloaded on - 15/04/2017 21:45:35 :::HCHP 9 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. between 20% to 50% to account for land required of 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, rt 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 21:45:35 :::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. 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 @ `10,00,000/- per bigha on uniform basis.
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13. In any event, Reference Court is duty bound to determine such of the market value, which is just, fair and reasonable.
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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 21:45:35 :::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. Collector determined the market value in the following manner:-
of "Therefore, by applying this method and keeping in view the statements of the owners the apportionment of the value of the land has been rt done on the basis of land revenue in the proportion of 4:5:1 and as a result the rates of market value for village Panjolth per bigha has been arrived at Rs. 3,43,199.00 (Rupees Three Lacs Forty Three Thousand One Hundred and Ninety Nine) only for land classified as majrua (cultivated) and Rs. 76,240.00 (Rupees Seventy Six Thousand Two Hundred and Forty) only for land classified as gair majrua (uncultivated)."
16. Perusal of the impugned award reveals that sale transactions (Ex.PW.1/B, Ex.PW.1/C and Ex.PW.1/D), have not been considered by the Reference Court. Since claimants have not filed any cross-objection, they are not aggrieved of the amount, which stands re-determined on the basis of exemplar award dated 26.07.2011 (Ex.PW.1/E), passed by District Judge, Mandi, in ::: Downloaded on - 15/04/2017 21:45:35 :::HCHP 12 Reference Petition No.81-A of 2008, titled as Sher Singh Versus NTPC through its Chairman Barmana and another and award dated 30.07.2010 (Ex.PW.1/F), passed by .
District Judge, Mandi, H.P., in Reference Petition No.163 of 2003, titled as Sh Amar singh Versus LAC, Kol Dam Project and another, which stand proved by the claimants' witnesses.
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17. Beneficiary has tendered in evidence exemplar sale deeds (Ex.R1 and Ex.R2), but has not examined any witness to prove the similarity.
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18. Noticeably the claimants have tendered in evidence awards (Ex.PW.1/E and Ex.PW.1/F). Both Mehar Chand (PW.1) and Khem Raj (PW.2) in their unrebutted testimonies have deposed that the acquired land so situated in village Panjolth was superior to the land so acquired in Mohals Ropa, Kayan, Jartu, Ahan, Neri Ropru and Doghri and that the claimants were entitled for compensation at least @ 5,00,000/- per bigha.
19. It is a matter of record that award (Ex.PW.1/E) stands affirmed by this Court in RFA No. 594 of 2011, decided on 13.12.2016, titled as NTPC Ltd. Versus Sher Singh and another and award (Ex.PW.1/F) stands ::: Downloaded on - 15/04/2017 21:45:35 :::HCHP 13 affirmed by this Court in RFA No. 325 of 2010, decided on 13.12.2016, titled as NTPC Ltd. Versus Amar Singh and another, wherein this Court has also observed the earlier .
decision rendered by a Coordinate Bench of this court in NTPC Ltd. Versus Kirpa and others, Latest HLJ 2016 (HP) 253, holding that:-
"18.Mr. N.K. Sood, Sr. Advocate, has drawn the attention of the Court to Award No.2 of 2002 vide of Ext. P-15. Award No. 2 of 2002 pertains to the acquisition of land in village Kyan for Kol Dam Hydel Project. The compensation was awarded at rt the rate of Rs. 4,35,447.26 paise per bigha. The notification under Section 4 of the Act, as noticed hereinabove, by acquiring the land of Village Ropa, was also published on 11.12.2000. Mohal Kyan is adjoining to Mohal Ropa. It has also come on record that village Ropa is having better quality of land, since it is irrigated vis-a-vis Mohal Kyan. The HP PWD has already purchased land at village Ropa for a consideration of Rs. 4,62,000/-
per bigha. The land of Mohal Kyan was though sold in small plots, in the year 2000, but for approximate price of Rs.40,000/- Rs 50,000/- per biswa. The learned Reference Court has correctly taken into consideration the sale transactions made vide sale deeds Ext. P-1 and Ext. PW-5/A and award No.2 of 2002 Ext. P-15, while determining the market value of the acquired land of the claimants."::: Downloaded on - 15/04/2017 21:45:35 :::HCHP 14
20. In the instant case, there is no reason as to why the present claimants be not accorded similar benefits. In this view of the matter, more so for the .
reason that no other perversity could be pointed out by giving findings by the Reference Court, no interference is warranted.
21. Reliance by the beneficiary on the decision of rendered by the Apex Court in Trishala Jain and another Versus State of Uttranchal and another, (2011) 6 SCC 47, is misplaced for the decision is rendered in the attending rt 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.
22. No other point urged or proved.
23. 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 dismissed, so also pending application(s), if any.
24. Cross-objection, if any, shall also stand disposed of.
::: Downloaded on - 15/04/2017 21:45:35 :::HCHP 1525. Quite evidently, in terms of award No.48 of 2006, so passed by the Collector several land reference petitions came to be clubbed and disposed of by the .
common impugned award dated 22.03.2014, passed by Additional District Judge, Mandi, (Camp at Sundernagar), District Mandi, H.P., in Reference Petition No.71 of 2008, titled as Mehar Chand and others Versus LAC, Kol Dam, of BIlaspur and another. Common evidence was led by the parties in land Reference Petition No.71 of 2008, subject matter of the present appeal.
rt Learned counsel for the parties contend that decision rendered in the present appeal would automatically apply to other connected matters which are 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.
December 15, 2016 (Purohit/PK) ::: Downloaded on - 15/04/2017 21:45:35 :::HCHP