Ntpc Ltd. (Kol Dam) Barmana Through Its ... vs Roshani And Another on 14 July, 2017

[Cites 10, Cited by 0]

Himachal Pradesh High Court

Ntpc Ltd. (Kol Dam) Barmana Through Its ... vs Roshani And Another on 14 July, 2017

Bench: Ajay Mohan Goel

    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                             RFA No. 520 of 2012.
                                                             Decided on: 14.7.2017.




                                                                         .

    NTPC Ltd. (Kol Dam) Barmana through its Deputy Manager (HR-
    LA).





                                                      ....Appellant.

                      Versus

    Roshani and another                        ... Respondents.





    ______________________________________________________

    Coram             r
    The Hon'ble Mr. Justice Ajay Mohan Goel, Judge

    Whether approved for reporting?1                   No.

    For the appellant.                 : Mr. Jagdish Thakur, Advocate.


    For respondents.                    : Mr. Ashok Sharma, Advocate for
                                         respondent No.1.




                                       : Mr. Vikram Thakur, Dy. Advocate
                                         General for respondent No.2.





    Ajay Mohan Goel, J. (Oral).

By way of this appeal, the appellant has challenged the award passed by the Court of learned District Judge, Bilaspur dated 20.4.2012 in Land Ref. Petition No. 111 of 2008 with the prayer that the impugned award be quashed and set aside.

Whether reporters of the local papers may be allowed to see the judgment?

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2. Brief facts necessary for adjudication of the present appeal are that land of the present respondent-Roshani situated in .

village Harnora, Tehsil Sadar, District Bilaspur was acquired with the land of other persons for public purpose i.e. for construction of Kol Dam in District Bilaspur vide Notification under Section 4 of the Land Acquisition Act (in short 'the Act') issued by the Government of Himachal Pradesh on 17.10.2000. This was followed by issuance of Notification under Section 6 and 7 of the Act which was issued on 12.2.2001 and the same was published in Himachal Pradesh Rajpatra on 19.2.2001. Public notices under Section 9 of the Act were issued on 21.3.2001 and thereafter Collector assessed the market value of the acquired land at the ratio of 4:5:1 i.e. as under:-

"(i) Barani(Majura) Rs. 4,69,955/- per bigha.

(ii) Khadyater etc.(Gair-Majrua) Rs. 1,04,416.00/- per bigha.

Besides this, 30% compulsory acquisition charges under Section 23(2) and interest under Section 23(1-A) and 34 of the Act were also granted by the Land Acquisition Collector."

3. Feeling aggrieved by the said award, land owners including the present respondent-Roshani filed reference petitions for enhancement of the compensation so awarded by Land Acquisition Collector. The reference petitions so filed by land owners including present respondent- Roshani was allowed in a common award by learned Court below in the following terms:-

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"In view of my findings on issue No.1 above, all the reference petitions succeed and are hereby allowed with costs. The petitioners are entitled to enhanced compensation at the uniform rate of Rs. 4,69,955/- per bigha qua the land acquired irrespective of its nature and quality. Besides, the petitioners are also entitled .

to solatium at the rate of 30% of the market value of the land assessed hereinabove under Section 23(2) of the Act. They are also entitled to the amount at the rate of 12% per annum on the enhanced compensation under Section 23(1A) of the Act w.e.f. 17.10.2000 the date of notification till the date of award. They are further entitled to interest on the enhanced compensation at the rate of 9% per annum from the date of taking possession or the date of award whichever is earlier for a period of one year and thereafter at the rate of 15% per annum till the date of payment/deposit of the amount of compensation as assessed above.

It is, however, ordered that the amount of compensation if already paid, shall be adjusted towards the enhanced amount of compensation. Memo of costs be prepared. The original award be placed on land reference petition No.77 of 2008 titled as Lekh Ram Vs. L.A.C. and an authenticated copy of the same be placed on each of the consolidated petitions. The file after due completion be consigned to the record room"

4. While arriving at the said conclusion it was held by learned court below that 857-7 bighas of land was acquired in village Harnora and entire land was situated far away from Bilaspur town.

Learned court below held that no material was placed on record by the beneficiaries of the acquisition proceedings to demonstrate that any area in village Harnora was less advantageously situated. It was further held by learned court below that entire land was to be used for the construction of 'Dam' which was likely to submerge in the water, thereafter in view of the law laid down by Hon'ble Supreme Court as well as by this Court the value of the land had to be assessed as a single unit and not separately for different types and different classes ::: Downloaded on - 17/07/2017 23:58:16 :::HCHP 4 of land. It was further held by learned court below that though the land may be of different categories but since it was likely to be .

submerged in water, the classification thus loses its significance.

Learned court below also held that as the claimants had failed to adduce any evidence which could be made basis for assessment of acquired land, therefore, the Court was left with no other option but to rely upon the rate which was mentioned in the award and to take the same as the value of the land which had to be assessed as a single unit and not separately for different types and different classes of land, as had been done by the Collector. On these bases, learned court below taking into consideration the rate of Barani (Majrua) which was the best kind of land under acquisition held that market value of both the categories of the acquired land at the time of issuance of notification under Section 4 of the Act was Rs. 4,69,955/- per bigha. Learned court below further held that Collector had not worked out the market value of acquired land at the uniform rate thus the compensation awarded by it was inadequate. It was also held by learned court below that land owners were entitled to the enhanced value at the uniform rate of Rs. 4,69,955/- per bigha for both the categories of acquired land under the award irrespective of the nature and quality of the land.

Learned court below upheld compensation granted by the Land ::: Downloaded on - 17/07/2017 23:58:16 :::HCHP 5 Acquisition Collector with regard to houses, built up structure. It was further held by it that there was no evidence led by claimants to show .

that the compensation awarded in respect of fruit and non-fruit bearing trees by Collector was inadequate.

5. The award so passed by learned court below stands assailed by present appellant who was respondent before learned court below.

6. I have heard learned counsel for the parties and have also gone through the records of the case as well as the award passed by learned court below.

7. Hon'ble Supreme Court in Chimanlal Hargonvinddas Vs. Special Land Acquisition Officer, Poona and another, AIR 1988 SC 1652; (1988) 3 SCC 751 has held:-

"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 material utilized by him for making his valuation cannot be utilized 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.

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(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.

(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.

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(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 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.

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 disadvantageous under acquisition. 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 ::: Downloaded on - 17/07/2017 23:58:16 :::HCHP 8 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 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."

8. It has been consistently held by Hon'ble Supreme Court that award of compensation has to be at uniform rates when the purpose of acquisition is common and no developmental activities were required to be carried out. (See Viluben Jhalejar Contractor (Dead) by LRs Versus State of Gujarat, (2005) 4 SCC 789 (paras 22 and 23); Himmat Singh and others Vs. State of Madhya Pradesh and another, (2013) 16 SCC 392 (para 34); Peerappa Hanmantha Harijan (Dead) By Legal Representatives and others Vs. State of Karnataka and another, (2015) 10 SCC 469 (paras 80 and 81).

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9. In fact this principle has also been followed by this Court in RFA No. 953 of 2012 titled Land Acquisition Collector and another .

Vs. Jatinder Singh decided on 1.6.2016. Therefore it can be safely concluded that it is a settled principle of law that in case the entire land is being put for public use and no area is being left out for carrying out any developmental activity then the claimants/land owners are entitled for compensation for the entire acquired land at uniform rates regardless of its characterization.

10. The principle of providing increase in the market value from 10% to 12% per year in case land is situated near urban areas and having potential for non-agricultural development has been upheld by Hon'ble Supreme Court in Haridwar Development Authority Vs. Raghubir Singh and others, (2010) 11 SCC 581.

11. Now coming to the facts of this case, it is an admitted fact that the entire land which was acquired was put to public purpose i.e. for the purpose of construction of the 'Dam'. As far as the basis of determining the compensation to which the claimants were entitled for, learned court below has relied upon the award of the Collector itself.

12. Learned counsel for the respondent has also brought to my notice a judgment passed by a Coordinate Bench of this Court in ::: Downloaded on - 17/07/2017 23:58:16 :::HCHP 10 RFA No. 580 of 2012 decided on 11.1.2017 which also pertains to acquisition of land undertaken for the benefit of present appellant .

itself for the same project in which also the award passed by learned Reference Court of assessing compensation at the rate of Rs.

4,25,266/- per bigha on uniform basis stands upheld by this Court. In my considered view, the award passed by learned court below otherwise also suffers from no infirmity. The reasons which have been assigned at by the learned court below while ordering enhanced compensation at uniform rate of Rs. 4,69,055/- per bigha qua the land acquired irrespective of nature and quality is duly sustainable on the basis of the reasoning which has been given by learned court below.

Besides this similar award passed by learned Reference Court pertaining to similar acquisition proceedings carried out in the same vicinity for the same beneficiary i.e. the present appellant for the same project already stands upheld by a Coordinate Bench of this Court, as I have already referred above.

In view of the above discussion, there is no perversity with the award which has been passed by learned court below.

Therefore, while upholding the same, the present appeal is dismissed being without any merit. No order as to cost.

(Ajay Mohan Goel) th 14 July, 2017(Guleria) Judge ::: Downloaded on - 17/07/2017 23:58:16 :::HCHP 11 .

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