Himachal Pradesh High Court
The Land Acquisition Collector (Cz) vs Sohan Singh Alias Sohan Lal & Others on 14 August, 2018
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA .
RFA No. 237 of 2015 alongwith other connected matters.
Date of Decision : August 14 , 2018
1. RFA No. 237 of 2015 & CO No. 84 of 2018 The Land Acquisition Collector (CZ) HPPWD & I&PH, Mandi, HP & another ...Appellant Versus Sohan Singh alias Sohan Lal & others ... Respondents
2. RFA No. 189 of 2015 & CO No. 136 of 2016 The Land Acquisition Collector (CZ) HPPWD & I&PH, Mandi, HP & another ...Appellant Versus Ram Lal & another ... Respondents 3 RFA No. 190 of 2015 & CO No. 137 of 2016 The Land Acquisition Collector (CZ) HPPWD & I&PH, Mandi, HP & another ...Appellant Versus Ranjit & others ... Respondents 4 RFA No. 191 of 2015 & CO No. 138 of 2016 The Land Acquisition Collector (CZ) HPPWD & I&PH, Mandi, HP & another ...Appellant Versus Sundda alias Dhani Ram & another ... Respondents 5 RFA No. 192 of 2015 The Land Acquisition Collector (CZ) HPPWD & I&PH, Mandi, HP & another ...Appellant Versus Devi Ram & another ... Respondents ::: Downloaded on - 17/08/2018 22:58:23 :::HCHP 2 6 RFA No. 193 of 2015 & CO No. 139 of 2016 The Land Acquisition Collector (CZ) .
HPPWD & I&PH, Mandi, HP & another ...Appellant Versus Suharu Devi & others ... Respondents 7 RFA No. 194 of 2015 and CO No. 86 of 2018 The Land Acquisition Collector (CZ) HPPWD & I&PH, Mandi, HP & another ...Appellant Versus Sunda alias Dhani Ram ... Respondent 8 RFA No. 195 of 2015 The Land Acquisition Collector (CZ) HPPWD & I&PH, Mandi, HP & another ...Appellant Versus Premi Devi ... Respondent 9 RFA No. 196 of 2015 & CO No. 22 of 2016 The Land Acquisition Collector (CZ) HPPWD & I&PH, Mandi, HP & another ...Appellant Versus Devi Ram & another ... Respondents 10 RFA No. 197 of 2015 and CO No. 87 of 2018 The Land Acquisition Collector (CZ) HPPWD & I&PH, Mandi, HP & another ...Appellant Versus Ram Pal & others ... Respondents 11 RFA No. 198 of 2015 and CO No. 88 of 2018 The Land Acquisition Collector (CZ) HPPWD & I&PH, Mandi, HP & another ...Appellant Versus Prem Lal & another ... Respondents ::: Downloaded on - 17/08/2018 22:58:23 :::HCHP 3 12 RFA No. 199 of 2015 and CO No. 89 of 2018 The Land Acquisition Collector (CZ) .
HPPWD & I&PH, Mandi, HP & another ...Appellant
Versus
Ram Parkash ... Respondents
13 RFA No. 200 of 2015 and CO No. 90 of 2018
The Land Acquisition Collector (CZ) HPPWD & I&PH, Mandi, HP & another ...Appellant Versus Bishan Dass alias Bishan Dutt ... Respondents 14 RFA No. 238 of 2015 and CO No. 85 of 2018 The Land Acquisition Collector (CZ) HPPWD & I&PH, Mandi, HP & another ...Appellant Versus Rattan Singh & others ... Respondents 15 RFA No. 43 of 2016 and CO No. 91 of 2018 The Land Acquisition Collector (CZ) HPPWD & I&PH, Mandi, HP & another ...Appellant Versus Jodh Singh & others ... Respondents 16 RFA No. 268 of 2018 Premi Devi ...Appellant Versus The Land Acquisition Collector (CZ) HPPWD & I&PH, Mandi, HP & another ... Respondents Coram:
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice.Whether approved for reporting? No. 1
Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 17/08/2018 22:58:23 :::HCHP 4
For the appellant : Mr. Adarsh Sharma, Mr. Nand Lal Thakur, Addl. Advocate Generals and Ms. Svaneel .
Jaswal, Dy.A.G for the appellant-
State/Non-cross objectors.
Mr.Rajiv Rai, Advocate, for the appellant in RFA No. 268 of 2018.
For the respondent : Mr. B. S. Chauhan, Senior Advocate with Mr. Manish Dathwalia, Advocate, for the respective private respondents in RFA Nos. 189, 190, 191, 192, 193, 196 of 2015 and also for the Cross Objectors in C.O. Nos. 136 to 139 and 22 of 2016.
Mr. Rajiv Rai, Advocate, for respective r private respondents in RFA No. 237, 194, 195, 197, 198 199, 200, 238 of 2015 and 43 of 2016 and also for the Cross Objectors in C.O. Nos. 84, 85, 86, 87, 88, 89, 90 and 91 of 2018.
Mr. Adarsh Sharma, Mr. Nand Lal Thakur, Addl. Advocate Generals and Ms. Svaneel Jaswal, Dy.A.G for the respondent/State in RFA No. 268 of 2018 Sanjay Karol, ACJ. (oral) CMP(M) No. 1049 of 2018 For the reasons so set out in the application, delay in filing the Appeal, which in my considered view has sufficiently been explained, is condoned. Appeal be registered. Application stand disposed of.
CMP(M) No. 1043 of 2018 in CO No. 84 of 2018, CMP(M) No. 1045 of 2018 in CO No. 86 of 2018, ::: Downloaded on - 17/08/2018 22:58:23 :::HCHP 5 CMP(M) No. 1046 of 2018 in CO No. 87 of 2018, CMP(M) No. 1047 of 2018 in CO No. 88 of 2018, CMP(M) No. 1048 of 2018 in CO No. 89 of 2018, .
CMP(M) No. 1050 of 2018 in CO No. 90 of 2018, CMP(M) No. 1044 of 2018 in CO No. 85 of 2018 & CMP(M) No. 1051 of 2018 in CO No. 91 of 2018.
2. For the reasons so set out in the applications, delay in filing the Cross Objections, which in my considered view has sufficiently been explained, is condoned.
Applications stand disposed of.
RFA No. 237 of 2015 & CO No. 84 of 2018, RFA r No. 189 of 2015 & CO No. 136 of 2016, RFA No. 190 of 2015 & CO No. 137 of 2016, RFA No. 191 of 2015 & CO No. 138 of 2016, RFA No. 192 of 2015, RFA No. 193 of 2015 & CO No. 139 of 2016, RFA No. 194 of 2015 and CO No. 86 of 2018, RFA No. 195 of 2015, RFA No. 196 of 2015 & CO No. 22 of 2016, RFA No. 197 of 2015 and CO No. 87 of 2018, RFA No. 198 of 2015 and CO No. 88 of 2018, RFA No. 199 of 2015 and CO No. 89 of 2018, RFA No. 200 of 2015 and CO No. 90 of 2018, RFA No. 238 of 2015 and CO No. 85 of 2018, RFA No. 43 of 2016 and CO No. 91 of 2018 and RFA No. 268 of 2018.
3. Both the beneficiary(ies) and the claimants have laid challenge to the impugned Award dated 15.7.2014 passed by learned District Judge, Bilaspur, H.P., in Land Ref.
Petition No. 25 of 2011, titled as Sohan Singh alias Sohan Lal & others vs. The Land Acquisition Collector (Central ::: Downloaded on - 17/08/2018 22:58:23 :::HCHP 6 Zone) HPPWD & I&PH, Mandi, H.P. & another, alongwith other connected reference petitions, whereby the land .
reference petitions filed by the claimants stand decided with the amount of compensation enhanced and re-
determined @`10,000/- per biswa.
4. Certain facts are not in dispute. For public purpose namely construction of Bamta-Ali Khad-Chandpur-
Kandraur Road, land situate in village Chandpur, Tehsil Sadar, Distt. Bilaspur, H.P. came to be acquired. Acquisition proceedings commenced with the publication of notification issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act), on 6.5.2005. The Collector Land acquisition passed his award No. 8 dated 20.4.2009. It is a matter of record that market value of the acquired land came to be assessed at different rates, classification/category wise ranging from `10,186 to `1,17,140/- per bigha. Aggrieved thereof, claimants filed land reference petitions under Section 18 of the Act, seeking re-determination of the market value of the acquired land, which stand decided in terms of impugned award dated 15.7.2014.
::: Downloaded on - 17/08/2018 22:58:23 :::HCHP 75. The extent of total land acquired is 2-05-17 bighas (1 bibha =1000 Sq. Yards). In support of their claim, .
the claimants produced both documentary as also ocular evidence. Seven exemplar sale deeds were proven on record by the claimants and five witnesses examined in their support. Whereas, on the other hand, state has placed on record copies of mutations (Ext. R-1 and R-2).
Significantly these mutations were not proved by any witness but were only tendered in evidence. Contents thereof were not proven by any witness. However, one witness was examined by the State.
6. The Reference Court, in paragraph 19 of the impugned award, has in a tabulated form, given details of various sale transactions, which chart is reproduced as under:
Sale deeds. Area of Sale Date of sale Village land sold consideration deed where in the land was sold Ext.PW-1/A 0-2 Bigha Rs. 90,000/- 20.1.2000 Mehan Ext. PW-1/B 0-2 Bigha Rs. 95,000/- 20.6.2001 Mehan Ext. PW-1/C 0-1 Bigha Rs. 35,000/- 18.7.2001 Benla Brahmna Ext.PW-1/D 0-2 Bigha Rs. 66,000/- 15.10.2001 Benla Brahmna Ext. PA 0-4 Bigha Rs.5,00,000/- 24.7.2010 Chandpur Ext. PB 0-3 Bigha Rs.3,00,000/- 18.7.2008 Chandpur Ext. PX 0-2 Bigha Rs. 20,000/- 22.4.2004 Chandpur Ext. R-1 Share Rs. 4,000/- 17.11.1999 Chandpur ::: Downloaded on - 17/08/2018 22:58:23 :::HCHP 8 (Mutation) Ext. R-2 Share Rs. 4,000/- 21.12.1999 Chandpur (Mutation) .
7. While rejecting the exemplar sale deeds (Ext.PW1/A, Ext. PW1/B, Ext. PW1/C & Ext. PW1/D), Reference Court has concluded that there is no evidence of similarity of land in these exemplar sale deeds with that of acquired land. Evidently, Reference Court has referred to and relied upon exemplar sale deed (Ext. PX) and based on the same re-determined the market value of the acquired land @ `10,000/- per biswa.
8. The issue which arises for consideration is as to whether the findings returned by the Reference Court are legal and borne out from the record or not?
9. Having heard learned counsel for the parties and perused the record, this Court is of the considered view that Reference Court erred in concluding that there was no evidence establishing similarity of the land situate in village Mehan with that of village Chandpur or for that matter similarity of the land sold in terms of exemplar sale deeds with that of the acquired land.
::: Downloaded on - 17/08/2018 22:58:23 :::HCHP 910. Both Joginder Singh (PW-4) and Krishan Kant (RW-1), who in fact are official witnesses, unequivocally and .
unambiguously have deposed that villages Mehan and Benla are sub-villages of village Chandpur and that the land situate in all these villages is same and similar.
11. From the testimony of vendor Nathu Ram (PW-3), who has exhibited and proven exemplar sale deed (Ext. PW-
1/A), it also stands established that the acquired land is just adjacent to the exemplar sale land and is almost similar in nature. Noticeably vide sale deed (Ext. PW-1/A), 0-2 bighas i.e. 2 biswas of land was sold for `90,000/-, but then this was in the year 2000, which is five years prior to the initiation of the instant acquisition proceedings. In this view of the matter, as is so prayed for by Mr. Adarsh Sharma, learned Addl. Advocate General, principle of deduction by 1/3rd for exemplar sale deed being similar in quantity cannot be applied. On the other hand, Mr. B. S. Chauhan, learned Senior Counsel, invites attention to the decision rendered by the Apex Court in Himmat Singh & others vs. State of Madhya Pradesh & another, (2013) 16 SCC 392, wherein also under similar circumstances, court re-determined the ::: Downloaded on - 17/08/2018 22:58:23 :::HCHP 10 market value by taking exemplar sale deed earliest in point in time. It is a settled principle of law that the acquirer .
must pay to the claimant compensation which is just, fair and reasonable. While re-determining market value, Courts are required to consider various factors as observed in Himmat Singh (supra) in the following terms:
"21. Before considering the respective arguments, we may notice the principles laid down by this Court for determination of market value of the acquired land. In Shaji Kuriakose v. Indian Oil Corpn. Ltd., (2001) 7 SCC 650, this Court held:
"3. It is no doubt true that courts adopt comparable sales method of valuation of land while fixing the market value of the acquired land. While fixing the market value of the acquired land, comparable sales method of valuation is preferred than other methods of valuation of land such as capitalisation of net income method or expert opinion method. Comparable sales method of valuation is preferred because it furnishes the evidence for determination of the market value of the acquired land at which a willing purchaser would pay for the acquired land if it had been sold in the open market at the time of issue of notification under Section 4 of the Act. However, comparable sales method of valuation of land for fixing the market value of the acquired land is not always conclusive. There are certain factors which are required to be fulfilled and on fulfilment of those factors the compensation can be awarded, according to the value of the land reflected in the sales. The factors laid down inter alia are: (1) the sale must be a genuine transaction, (2) that the sale deed must have been executed at the ::: Downloaded on - 17/08/2018 22:58:23 :::HCHP 11 time proximate to the date of issue of notification under Section 4 of the Act, (3) that the land covered by the sale must be in the .
vicinity of the acquired land, (4) that the land covered by the sales must be similar to the acquired land, and (5) that the size of plot of the land covered by the sales be comparable to the land acquired. If all these factors are satisfied, then there is no reason why the sale value of the land covered by the sales be not given for the acquired land. However, if there is a dissimilarity in regard to locality, shape, site or nature of land between land covered by sales and land acquired, it is open to the court to proportionately reduce the compensation for acquired land than what is reflected in the sales depending upon the disadvantages attached with the acquired land."
22. In Viluben Jhalejar Contractor v. State of Gujarat, (2005) 4 SCC 789, this Court elaborately considered the matter and culled out the following principles:
"18. One of the principles for determination of the amount of compensation for acquisition of land would be the willingness of an informed buyer to offer the price therefor. It is beyond any cavil that the price of the land which a willing and informed buyer would offer would be different in the cases where the owner is in possession and enjoyment of the property and in the cases where he is not.
19. Market value is ordinarily the price the property may fetch in the open market if sold by a willing seller unaffected by the special needs of a particular purchase. Where definite material is not forthcoming either in the shape of sales of similar lands in the neighbourhood at or about the date of notification under Section 4(1) or otherwise, other sale instances as well as other evidences have to be considered.
20. The amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified having ::: Downloaded on - 17/08/2018 22:58:23 :::HCHP 12 regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under .
acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-a-vis the land under acquisition by placing the two in juxtaposition. The positive and negative factors are as under:
Positive factors Negative factors
(i) smallness of size (i) largeness of area
(ii) proximity to a (ii) situation in the road interior at a distance from the road
(iii) frontage on a (iii) narrow strip of land road with very small frontage r compared to depth
(iv) nearness to (iv) lower level requiring developed area the depressed portion to be filled up
(v) regular shape (v) remoteness from developed locality
(vi) level vis-a-vis (vi) some special land under disadvantageous acquisition factors which would deter a purchaser
(vii) special value for an owner of an adjoining property to whom it may have some very special advantage
21. Whereas a smaller plot may be within the reach of many, a large block of land will have to be developed preparing a layout plan, carving out roads, leaving open spaces, plotting out smaller plots, waiting for purchasers and the hazards of an entrepreneur. Such development charges may range between 20% and 50% of the total price."::: Downloaded on - 17/08/2018 22:58:23 :::HCHP 13
23. In Atma Singh v. State of Haryana, (2008) 2 SCC 568, the Court held:
.
"4. In order to determine the compensation which the tenure-holders are entitled to get for their land which has been acquired, the main question to be considered is what is the market value of the land. Section 23(1) of the Act lays down what the court has to take into consideration while Section 24 lays down what the court shall not take into consideration and have to be neglected. The main object of the enquiry before the court is to determine the market value of the land acquired. The expression 'market value' has been the subject-matter of consideration by this Court in several cases. The market value is the price that a willing purchaser would pay to a willing r seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities when led out in most advantageous manner excluding any advantage due to carrying out of the scheme for which the property is compulsorily acquired. In considering market value disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded. The guiding star would be the conduct of hypothetical willing vendor who would offer the land and a purchaser in normal human conduct would be willing to buy as a prudent man in normal market conditions but not an anxious dealing at arm's length nor facade of sale nor fictitious sale brought about in quick succession or otherwise to inflate the market value. The determination of market value is the prediction of an economic event viz. a price outcome of hypothetical sale expressed in terms of probabilities. See: Kamta Prasad Singh v. State of Bihar, (1976) 3 SCC 772, Prithvi Raj Taneja v. State of M. P., (1977) 1 SCC 684, Administrator General of W. B. v. Collector, (1988) 2 SCC 150 and Periyar Pareekanni Rubbers Ltd. v. State of Kerala, (1991) 4 SCC
195. ::: Downloaded on - 17/08/2018 22:58:23 :::HCHP 14
5. For ascertaining the market value of the land, the potentiality of the acquired land should also be taken into consideration.
.
Potentiality means capacity or possibility for changing or developing into state of actuality. It is well settled that market value of a property has to be determined having due regard to its existing condition with all its existing advantages and its potential possibility when led out in its most advantageous manner. The question whether a land has potential value or not, is primarily one of fact depending upon its condition, situation, user to which it is put or is reasonably capable of being put and proximity to residential, commercial or industrial areas or institutions. The existing amenities like water, electricity, possibility of their further extension, whether near about a r town is developing or has prospect of development have to be taken into consideration. See: Collector v. Dr. Harisingh Thakur, (1979) 1 SCC 236, Raghubans Narain Singh v. U.P. Govt., AIR 1967 (SC) 465 and Administrator General of W. B. v. Collector, (1988) 2 SCC 150. It has been held in Kausalya Devi Bogra v. Land Acquisition Officer, (1984) 2 SCC 324 and Suresh Kumar v. Town Improvement Trust, (1989) 2 SCC 329 that failing to consider potential value of the acquired land is an error of principle.""
12. In this view of the matter, this Court is of the considered view that claimants have made out a case for interference, more so, for the reason that the land already stood developed and the entire land was fully utilized for public purpose. In fact, it has come on record that road already stood constructed but the villages were deprived of timely compensation. Under these circumstances, Cross ::: Downloaded on - 17/08/2018 22:58:23 :::HCHP 15 Objections and appeal filed by the claimants are allowed with the market value of the acquired land re-determined .
@`45,000/- per biswa, instead of `10,000/- per biswa as awarded by the Reference Court. Impugned Award stands modified accordingly. Appeals filed by the beneficiary(ies) are dismissed.
Appeals as also the Cross Objections stand disposed of accordingly, as also pending application(s), if any.
(Sanjay Karol), Acting Chief Justice.
August 14 , 2018 (PK) ::: Downloaded on - 17/08/2018 22:58:23 :::HCHP