Himachal Pradesh High Court
Ntpc Limited vs Shri Sher Singh & Others on 27 December, 2016
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RFA No. 236 of 2011 Date of Decision: December 27, 2016.
.
NTPC Limited. ...Appellant.
Versus
Shri Sher Singh & others. ...Respondents.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1No.
of For the Appellant: Mr. Neeraj Gupta, Advocate, for the appellant-NTPC.
For the Respondents: Mr.Nand Lal Chauhan, Advocate, for rt respondents No.1 & 2.
Mr.Puneet Rajta, Dy. AG., for respondents No.3 & 4-State.
Sanjay Karol, J (oral).
The acquisition proceedings pertain to the Collector's award No.19 of 2004, dated 26.08.2004, pertaining to village Hawani Kol, Tehsil Arki, District Solan, H.P. In terms of the said award, the market value of the acquired land stands determined, classification wise from `86,114/- to `3,87,383/-. In the impugned land reference petition, the same stands re-determined by the Reference Court @ `5,00,000/- per bigha, on uniform basis, for the reason that: (a) The observations made by 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:49:30 :::HCHP 2the Collector in its award itself justified such enhancement.
2. 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 of `3,87,383/- to `5,00,000/- per bigha.
3. In terms of award No.19 of 2004, dated 26.08.2004, Collector Land Acquisition, determined the rt market value of the acquired land awarding different rates, classification/category wise, ranging from `86,114/- to `3,87,383/- per bigha.
4. In terms of the impugned award dated 01.04.2009, passed by Additional District Judge, Solan, District Solan, H.P., in Reference Petition No.38-S/4 of 2007/06, titled as Sher Singh and another Versus The Acquisition Collector, N.T.P.C. (Kol Dam), Bilaspur and others, the Reference Court re-determined the market value of the entire acquired land, irrespective of its category/classification, by uniformly awarding a sum of `5,00,000/- per bigha.
::: Downloaded on - 15/04/2017 21:49:30 :::HCHP 35. Certain facts are not in dispute: (i) 138-2 bighas (reduced from original area 284-11 bighas) of land came to be acquired in village Hawani Kol, Tehsil Arki, .
District Solan, H.P., with the publication of notification in the official gazette on 23.11.2000, so issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act); (ii) The acquisition proceedings of concluded with the passing of Collector's award No.19 of 2004 dated 26.08.2004, under Section 11 of the Act and the State taking over possession of the land; (iii) The rt purpose of acquisition being construction of Dam, commonly known as Kol Dam; (iv) Dissatisfied with the offer made by the Collector, claimants filed petitions under Section 18 of the Act, which came to be clubbed (with Reference Petition No. 38-S/4 of 2007/06) and on the basis of common evidence led by the parties, disposed of in terms of impugned award; (v) While the claimants accepted the award, only the beneficiary preferred the present appeal(s) under Section 54 of the Act; (vi) It is the common case of parties that the entire acquired land came to be submerged with the construction of Dam by the beneficiary. Also there is no ::: Downloaded on - 15/04/2017 21:49:30 :::HCHP 4 evidence on record of either any requirement or any developmental activity carried out on the spot.
6. 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.
7. With these admitted/undisputed facts, of material placed on record by the parties is being appreciated for just decision of the case.
8. It is a settled principle of law that onus of rt establishing true market value of the acquired land, higher than the one which stands determined by the Collector, is always upon the claimants.
9. Perusal of the Collector's award reveals that claimants themselves claimed compensation @ `30,00,000/- per bigha. But then it was category/classification wise.
10. 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.
::: Downloaded on - 15/04/2017 21:49:30 :::HCHP 5The 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 Court below.
11. With vehemence, Mr. Neeraj Gupta, learned counsel, contends that Reference Court erred in of considering the fact that before the Collector, claimants had themselves elected for award of compensation on the basis of classification/category, hence they were rt precluded from seeking re-determination of the market value of the acquired land on uniform basis.
12. To rebut the same, Mr. Nand Lal Chauhan, learned counsel, seeks reliance on the decision rendered by the Apex Court in Chimanlal Hargonvinddas 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 ::: Downloaded on - 15/04/2017 21:49:30 :::HCHP 6 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 of 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 rt 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 ::: Downloaded on - 15/04/2017 21:49:30 :::HCHP 7 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.
of (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 rt 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.::: Downloaded on - 15/04/2017 21:49:30 :::HCHP 8
(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 norm for plus factors and unloading it for minus factors.
(14) The exercise indicated in clauses (11) to (13) of 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 :-
rt (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 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.::: Downloaded on - 15/04/2017 21:49:30 :::HCHP 9
(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 of 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 rt 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.
::: Downloaded on - 15/04/2017 21:49:30 :::HCHP 10(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.
13. Significantly while responding to the reference of 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 rt memo of appeal. In fact, as is evident from the reference petition, claimants had claimed rates @ `30,00,000/- per bigha, on uniform basis.
14. In any event, Reference Court is duty bound to determine such market value, which is just, fair and reasonable.
15. 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 ::: Downloaded on - 15/04/2017 21:49:30 :::HCHP 11 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. As of 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.
rt
16. Now 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.
17. The apex Court in Haridwar Development Authority vs. Raghubir Singh & others, (2010) 11 SCC 581 has upheld the award of compensation on uniform rates.
Also it has acknowledged the principle of providing increase in the market value up to 10% to 12% per year ::: Downloaded on - 15/04/2017 21:49:30 :::HCHP 12 for the land situated near urban areas having potential for non-agricultural development.
18. 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 ` 40,000/- per acre, irrespective of the of classification and the category of land.
19. Further, in Nelson Fernades vs. Special Land Acquisition Officer 2007(9) SCC 447 while dealing with rt 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.
20. Similar view stands 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 came to be dismissed by the Apex Court on 16.8.2004.
::: Downloaded on - 15/04/2017 21:49:30 :::HCHP 1321. 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 of awarded compensation on uniform rates.
22. It is a matter of fact that the entire land was put to public purpose. Dam stood constructed thereupon.
rt 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.
23. On the basis of observations so made by the Collector in his award No.19 of 2004, being subject matter of the present proceedings, Reference Court has made observations made in para-8 of the impugned award, which for the purposes of ready reference are reproduced as under:-
"It has also been observed by the LAC in the same para of award that villages Hawani Kol, Padyal, Sui Nichli, Beral and Parla Kayar are adjoining to each other and all the features like distance from the road, productivity, crop, market potential and soil ::: Downloaded on - 15/04/2017 21:49:30 :::HCHP 14 structure of these villages is by and large similar. Thereby he has considered expedient to have parity in the villages as far as market value of the land is concerned. He has further observed that if .
we go by sale statistics of the villages separately, then, of course, the market value of these villages is not only different, but have a big gap. For village Hawani Kol, market value has been calculated as Rs. Four lacs per bigha and for Padyal which is immediately adjoining village of village to Hawani Kol Rs. 2,12,000/- per bigha. He has further observed that as per the sale statistics in some other two villages, the market value is zero. Thus as per him, as per the sale statistics, rt the market value of some villages which the land has been acquired is zero. It can be observed that no part of the land has got zero value especially which is being cultivated and people are residing thee for generation to generation. If the observations made by the LAC is to be followed that for no compensation need to be awarded where the value of the land is zero. The reason for there being no sale transaction afore stated could be that in villages the land is by and large used for agricultural purpose and thereby no sale transactions take place. Thus it cannot be said that land has got zero value if there is no sale transactions. Such type of conclusion would not be justified in any manner in the present world and our democratic system. The LAC has opted to get the value of the land, put together of Hawani Kol and Padyar and had calculated it at Rs.::: Downloaded on - 15/04/2017 21:49:30 :::HCHP 15
3,06,000/- irrespective of classification of land. Thus, it has been observed that basic market value for these villages comes to Rs. 3,06,000/- per bigha irrespective of classification of the land.
.
It has also been observed by him that in these villages classification as per the record is of Kayar Abal, Kayar Dom, Kohli, Barani (Abal, Dom, Son), Bagicha and Banzar and Ghasni etc. As per him, he had consulted the villagers on that point and majority of them made statement that they want of their land to be classified in two classes i.e. Majrua and gair majrua for the purpose of payment of compensation and the ratio of compensation between majrua and gair majrua rt should be 4:5:1. It has further been observed by the LAC that apportionment of the value of the land has been taken on the basis of average land revenue (parta bandobast) in the proportion of 4:5:1 and as a result of rate per bigha for village Hawani Kol uniformly for land classified the land majrua (cultivated) Rs. 3, 87, 383.00 (Rupees Three lacs eighty seven thousand three hundred eighty three only) and gair majrua (uncultivated) Rs. 86,114 (Rupees eighty six thousand one hundred fourteen only). He has further observed that he has also taken into consideration all the parameters as indicated in the Section 23 of the Act which has got the approval of Distt. Collector. Solan. It has also been stated that it is worth mentioning that the land has been classified in two classes and the apportionment of the value of the land has been done on the basis of the ::: Downloaded on - 15/04/2017 21:49:30 :::HCHP 16 average land revenue (parta bandobast) for the land acquired in the adjoining villages of Distt. Bilaspur."
24. The claimants have produced on record .
Collector's award No. 17 of 2004, dated 15.08.2004 (Ex.PW.1/B), pertaining to village Kasol (Part-I), Tehsil Sadar, District Bilaspur, H.P., which for the reasons emanating (supra) rightly stands not considered.
of
25. The Reference Court has taken note of the similarity, productivity and potentiality, with respect to rt the adjoining villages Padyar and Sui Nichli.
26. Significantly, while upholding the acquisition proceedings for the very same public purpose, this Court in RFA No. 267 of 2011, titled as NTPC Ltd. Versus Briju alias Brij Lal and others, decided on 19.12.2016, observed as under:-
"19. Collector himself observed that the land situate in Villages Padyar, Hawani Kol, Sui Nichli, Beral and Parla Kyar were adjoining to each other and had "all other features like distance from road, productivity, cropping pattern, potentiality and the soil structure of these villages is by enlarge similar". It found parity between the acquired land with the land situate in these villages. It also took into account statistics of the sale transactions so ::: Downloaded on - 15/04/2017 21:49:30 :::HCHP 17 executed in village Sui Nichli, reflecting market value of one bigha of land to be `5,66,667/-, but then by considering sale transaction pertaining to village Hawani Kol, where land came to be sold for .
a sum of `4,00,000/- per bigha, by scaling down the price by 1/3rd, in its wisdom, re-determined the market value @ `5,00,000/- per bigha.
20. Reasoning adopted by the Reference Court is based on the objective material so considered by of the Collector himself. It cannot be said to be perverse, erroneous or illegal. The Collector himself found similarity of the acquired land situate in village Padyar, similar to that of the land situate in rt villages Sui Nichli and Hawani Kol and as such, by taking the mean of sale transaction so executed in these two villages rightly determined the market value of the acquired land at `5,00,000/- per bigha".
27. Reliance by the beneficiary on the decision rendered by the Apex Court in Trishala Jain and another Versus State of Uttranchal and another, (2011) 6 SCC 47, is also misplaced for the decision is rendered in the attending 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.
28. No other point urged or proved.
::: Downloaded on - 15/04/2017 21:49:30 :::HCHP 1829. 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.
30. Cross-objection, if any, shall also stand disposed of.
of
31. Quite evidently, in terms of award No.19 of 2004, so passed by the Collector, several land reference petitions came to be clubbed and disposed of by the rt common impugned award dated 01.04.2009, passed by Additional District Judge, Solan, District Solan, H.P., in Reference Petition No.38-S/4 of 2007/06 titled as Sher Singh and another Versus The Acquisition Collector, N.T.P.C. (Kol Dam), Bilaspur and others. Common evidence was led by the parties in land Reference Petition No.38-S/4 of 2007/06. Learned counsel for the parties jointly submit that decision rendered in the present appeal would have an automatic bearing on the other connected appeals, arising out of the very same impugned award, pending before this Court. Registrar (Judicial) to take appropriate instructions from Hon'ble ::: Downloaded on - 15/04/2017 21:49:30 :::HCHP 19 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 27, 2016 (Purohit/PK) of rt ::: Downloaded on - 15/04/2017 21:49:30 :::HCHP