Himachal Pradesh High Court
Ntpc Ltd. R vs Ramji And Another on 28 June, 2017
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
RFA No. 625/2011-C alongwith RFA No. 626/2011-C,
RFA No. 627/2011-C, RFA No.628/2011-C, RFA
No.629/2011-C, RFA No. 630/2011-C, RFA No.
631/2011-C, RFA No. 632/2011-C, RFA No. 633/2011-
C, RFA No. 634/2011-C, RFA No. 635/2011-C, RFA No.
636/2011-C, RFA No. 637/2011-C, RFA No. 638/2011-
C, RFA No. 639/2011-C, RFA No. 641/2011-C & RFA
No. 642/2011-C.
Date of decision: June 28, 2017
RFA No. 625/2011-C
NTPC Ltd. r .....Appellant
Versus
Ramji and another ....Respondents
RFA No. 626/2011-C
NTPC Ltd. .....Appellant
Versus
Ramjani and another ....Respondents
RFA No. 627/2011-C
NTPC Ltd. .....Appellant
Versus
Krishanu and others ....Respondents
RFA No. 628/2011-C
NTPC Ltd. .....Appellant
Versus
Maya Devi and another ....Respondents
RFA No. 629/2011-C
NTPC Ltd. .....Appellant
Versus
Haria alias Hari Ram and others ....Respondents
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2
RFA No. 630/2011-C
.
NTPC Ltd. .....Appellant
Versus
Babu Ram and others ....Respondents
RFA No. 631/2011-C
NTPC Ltd. .....Appellant
Versus
Garja Ram and another
RFA No. 632/2011-C
NTPC Ltd.
r to ....Respondents
.....Appellant
Versus
Amar Singh and another ....Respondents
RFA No. 633/2011-C
NTPC Ltd. .....Appellant
Versus
Haria alias Hariman and another ....Respondents
RFA No. 634/2011-C
NTPC Ltd. .....Appellant
Versus
Ganpat Ram and others ....Respondents
RFA No. 635/2011-C
NTPC Ltd. .....Appellant
Versus
Achhar Singh and another ....Respondents
RFA No. 636/2011-C
NTPC Ltd. .....Appellant
Versus
Bangalu and another ....Respondents
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3
RFA No. 637/2011-C
.
NTPC Ltd. .....Appellant
Versus
Bindra Devi and another ....Respondents
RFA No. 638/2011-C
NTPC Ltd. .....Appellant
Versus
Sohan Lal and another ....Respondents
RFA No. 639/2011-C r
NTPC Ltd. .....Appellant
Versus
Mehar Singh and another ....Respondents
RFA No. 641/2011-C
NTPC Ltd. .....Appellant
Versus
Indira Devi and others ....Respondents
RFA No. 642/2011-C
NTPC Ltd. .....Appellant
Versus
Shyam Lal and another ....Respondents
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 No
For the appellants :Mr. Neeraj Gupta, Advocate
(in all appeals)
For private respondents :M/s. Viashal Panwar and Varun Rana,
Advocates
1
Whether the reporters of Local Papers may be allowed to see the judgment?
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4
.
For respondents-State : Mr. Vikram Thakur, Dy. A.G. with Ms.
Parul Negi, Dy.A.G.
Ajay Mohan Goel, J. (Oral)
By way of these appeals, the appellants have challenged the award passed by the Court of learned Addl. District Judge, Mandi in Reference Petition No.207 of 2003 dated 15.07.2011 alongwith connected reference petitions with the prayer that the award so passed by the learned Court below be quashed and set aside as the same is on higher side.
2. Brief facts necessary for adjudication of the present appeals are that a notification was issued under section 4 of Land Acquisition Act,1894 (hereinafter referred to as "the Act") on 11.12.2000, which was published in official gazette on 19.12.2000 for the purpose of acquiring 252-12-09 bighas of land situated in Village Kayan, Tehsil Sundernagar, Distt. Mandi (H.P.) for construction of Kol Dam at Barmana Distt. Bilaspur. This was followed by issuance of notification under sections 6 & 7 of Land Acquisition Act on 08.05.2001 which was published in official gazette on 12.05.2001.
After following the statutory formalities, the Land Acquisition Collector announced the award on 23.07.2002 and assessed the market value of the acquired land category wise, which is as under:
Class of land Area Rate per bigha
Barani Abbal 117-1-2 bighas Rs.4,35,447.26
Barani Doyam 77-17-15 bighas Rs.3,74,969.02
Bagicha Barani 14-10-11 bighas Rs.3,74,969.06
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5
Bnjar Kable Kast 16-6-15 bighas Rs.90,695.68
Khadyatar 3-19-10 bighas Rs.78,508.87
.
Gair Mumkin 22-16-16 bighas Rs.90,718.82
____________________________________________ Grand Total 252-12-09 bighas Rs.3,54.243.54 _____________________________________________
3. Feeling dissatisfied with the award so passed by the Land Acquisition Collector, the respondents herein filed reference petitions under section 18 of Land Acquisition Act before learned Addl. District Judge, Mandi. By way of award under challenge, in these appeals, all these reference petitions were decided by the learned Addl. District Judge by returning the following findings:
"30. In view of my aforesaid discussions, reference petitions are allowed with costs and the reference petitioners are held entitled to enhanced compensation at the rate of Rs.5,00,000/- per bigha in respect of acquired land. Further, the reference petitioners are also held entitled to following reliefs:-
(a) The petitioners shall also be entitled to solatium @ 30% on the estimated cost assessed as stated aforesaid.
(b) the reference petitioners shall also be entitled for additional compensation @12% per annum under section 23(1)A of the Act w.e.f. 21.12.2000, the date of publication of notification till the date of award of the Collector i.e. 23.7.2002 and
(c) the reference petitioners shall also be entitled to interest under section 28 of the Act on the cost assessed under sub section (1) of Section 23 of the Act, the additional compensation worked out under sub section (1-A) of Section 23 of the Act, plus solatium awarded under sub section 23 ::: Downloaded on - 04/07/2017 23:58:16 :::HCHP 6 of the Act, solatium awarded under sub section 23 of the Act, at the rate of 9% per annum on the value assessed .
from the date of taking over of possession for a period of one year and thereafter @15% per annum till the date of payment/deposit of the amount of compensation in accordance with Section 34 of the Act."
4. I have heard learned counsel for parties and also gone through the records.
5. Mr. Neeraj Gupta, learned counsel for the appellants has submitted that the award passed by the learned Court below is not sustainable as the learned Court below erred in not appreciating that before the Collector, the land owners had themselves opted for award of compensation on the basis of classification/category. Therefore, they were subsequently precluded from seeking re-determination of the market value of the acquired land on uniform basis.
6. In response, learned counsel for the respondents has sought reliance on the judgment passed by Hon'ble Supreme Court in Chimanlal Hargonvinddas Versus Special Land Acquisition Officer, Poona and another, AIR 1988 SC 1652; (1988) 3 SCC 751, in which the Hon'ble Supreme Court has held as under:-
"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 ::: Downloaded on - 04/07/2017 23:58:16 :::HCHP 7 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 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 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 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 - 04/07/2017 23:58:16 :::HCHP 8
(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. (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 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 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 be evaluated in terms 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 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 ::: Downloaded on - 04/07/2017 23:58:16 :::HCHP 9 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 at
a distance from the road.
3. Frontage on a road. 3. Narrow strip of land with
very small frontage
compared to depth.
area.r
5. Regular shape.
4. Nearness to developed 4. Lower level requiring the depressed filled up.
portion to be
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 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 ::: Downloaded on - 04/07/2017 23:58:16 :::HCHP 10 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 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, 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.
7. It is pertinent to mention here as is evident from the records, this objection was never taken by the present appellants in fact grounds of appeals and findings of the Court also demonstrate that the issue which is being raised in the appeal is not a pleaded ground in the same. On the other hand, it is apparent from the claim as put forward in the reference petition that the claimants had claimed rates @ Rs.15 lacs per bigha, on uniform basis.
::: Downloaded on - 04/07/2017 23:58:16 :::HCHP 118. 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 Acquisition Collector & another Versus Jatinder Singh, decided on 01.06.2016 and other connected matters. Therefore, in view of admitted/undisputed factual matrix, as noticed earlier, it would not be permissible for the beneficiary to raise such objections.
9. 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 are entitled for compensation for the entire acquired land, at uniform rates, regardless of its categorization.
10. Hon'ble Supreme Court of India in Haridwar Development Authority vs. Raghubir Singh & others, (2010) 11 SCC 581 has upheld the award of compensation on uniform rates. It has also 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.
::: Downloaded on - 04/07/2017 23:58:16 :::HCHP 1211. 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 Rs.40,000/- per acre, irrespective of the classification and the category of land.
12. 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.
13. Similar view has been taken by this Court in Gulabi and etc. Vs. State of H.P., AIR 1998 HP 9 and later on in H.P. Housing oard vs. Ram Lal & Ors. 2003(3) Shim. L.C. 64, which 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.
14. 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 compensation on uniform rates.
::: Downloaded on - 04/07/2017 23:58:16 :::HCHP 1315. It is a matter of fact that the entire land was put to public purpose.
.
Dam stood constructed thereupon. 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.
16. It is a matter of record that claimants examined four witnesses, namely, Sh. Ramji Dass (PW-1), Sh. Garja (PW-2), Sh. Birbal Singh (PW-
3) and Sh. Hariman (PW-4) and proved on record sale deeds (Ext.P1 to Ext.P4) and copy of judgment dated 01.102010 (Ext.P5) and beneficiaries placed on record sale deeds (Ext.RA & Ext.RB).
17. Sale deeds produced by the claimants stand rejected by the Reference Court for the reason that they do not reflect true market value of the acquired land.
18. Insofar as sale deeds placed on record by the beneficiaries are concerned, no doubt, in view of the statutory provisions (Section 51-A of the Act) and the law laid down by the Apex Court in Cement Corpn. of India Ltd. Versus Purya and others, (2004) 8 SCC 270, these sale transactions cannot be ignored, however, there is no evidence on record, establishing comparability of the acquired land with these exemplar sale transactions. No ocular evidence was led by the beneficiary to substantiate the same. In this view of the matter, these sale transactions cannot be accounted for, for just determination of a fair market value of the acquired land.
::: Downloaded on - 04/07/2017 23:58:16 :::HCHP 1419. Besides this, it cannot be said that the award passed by the .
Reference Court has any bearing for want of any evidence of similarity with regard to the use, nature and potential.
20. On the other hand, one finds that the evidence led by the claimants stands considered and discussed by the Reference Court. Discussion is based on correct and complete appreciation of material on record.
Reasoning given is logical and reasonable. Conclusion is just, fair and
reasonable. r
21. Insofar as the claim with regard to the superstructure is concerned, Reference Court has aptly dealt with the issue in paragraph 37 of the impugned Award. Perusal of paragraph 37 demonstrates that no evidence with regard to superstructure, worthy of credence was led by the parties.
Therefore, in the absence of any other evidence on record, it cannot be said that the Reference Court erred in re-determining the market value of the acquired land and awarding rates on uniform basis irrespective of its classification.
22. It is pertinent to mention that appeals arising out of land reference petitions pertain to the very same award i.e. award No.2 of 2002, dated 19.07.2002, which already stands adjudicated by this Court in RFA No.325 of 2010, titled as NTPC Ltd. Versus Amar Singh and another, decided on 13.12.2016, wherein market value of the acquired land stands re-determined @ Rs.5,00,000.00 per bigha.
23. No other point urged or proved.
::: Downloaded on - 04/07/2017 23:58:16 :::HCHP 1524. Therefore, it cannot be said that the findings returned by the .
Reference Court are perverse, illegal or erroneous, and as such, all the appeals are dismissed, so also pending application(s), if any.
June 28, 2017 (Ajay Mohan Goel),
(rana) Judge
r to
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