Himachal Pradesh High Court
Zoological Survey Of India vs Kuldeep Chand Sood (Deceased) on 29 May, 2020
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No.406 of 2006 a/w Cross Objections No.424 of 2006.
Reserved on: 27.05.2020.
Decided on: 29.05.2020 Zoological Survey of India ....Appellant/non-cross objector.
Versus Kuldeep Chand Sood (deceased) through LRs Smt. Renu Sood & others ...Respondents/ cross objectors.
Coram The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes For the appellant/ non-cross objector : Mr. Balram Sharma, Senior Panel Counsel.
For the respondents : Mr. G.D. Verma, Senior Advocate, with Mr. Romesh Verma, Advocate, for respondents No.1 (a) to 1 (c), 2, 4, 5, 7 (a) to 7 (c) and 8/ cross objectors.
Mr. Ajay Sharma, Senior Advocate, with Mr. Rakesh Chaudhary, Advocate, for respondents No.3/ non- cross objector.
Mr. Sumesh Raj, Mr. Dinesh Thakur and Mr. Sanjeev Sood, Additional Advocate Generals, for respondents No.9 and 10/ non-cross objectors.
1Whether reporters of the local papers may be allowed to see the judgment?
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Ajay Mohan Goel, Judge Both the appeal and cross-objections are being disposed of vide common judgment.
2. Brief facts necessary for the adjudication of the present appeal as well as cross-objections are as under:-
Government of Himachal Pradesh (Forest Department) issued a notification under Section 4 of the Land Acquisition Act,1894, on 17.11.1999, with the intention to acquire land measuring 3586 Sqmt., comprised in khasra No.1576, in village Saproon (Solan), Tehsil and District Solan, H.P., for the purpose of establishment of a housing colony by the Zoological Survey of India. After following the statutory procedure prescribed in the Land Acquisition Act, Land Acquisition Collector-cum- Sub Divisional Magistrate, Solan, H.P. passed an award i.e. award No.1 of 2002, dated 15.02.2002 in the following terms:-
"I, therefore, grant compensation @ Rs.260/- per Sqr.Mtr., financial approval for which has already been sought from the Commissioner-cum-Secretary (Forest) to the Govt. of H.P. vide letter No.FFC-B-E-(3)28/92 dated 30-1- 2002. The total compensation of 3586 Sqr. Mtrs. Ghasni land comprised in Kh. No.1576 situated in Village Saproon (Solan) Tehsil & Distt. Solan alongwith 30% solatium on the market value of the land and interest ::: Downloaded on - 01/06/2020 20:23:01 :::HCHP 3 .
thereon as required under the Land Acquisition Act, 1894 as per detail given below is awarded in favour of interest holders as per their respective shares:
"1. Total market value of 3586 Sqr. Mtrs. Rs.9,32,360/- Ghasni Land @ Rs.260/- per Sqr. Mtr.
2. 12% Interest on market value of land from Rs.2,22,834/- the publication of notification U/S-4 of the Land Acquisition Act, till the date of announcement of Award i.e. 17-2-2001 to 15-2-2002 (One year 11 months & 27 days)
3. 30% solitium on market value of the land Rs.2,79,708/-
Total: Rs.14,34,902/-"
3. Feeling dissatisfied, land owners preferred Reference under Section 18 of the Land Acquisition Act.
4. Record suggests that initially despite opportunities having been granted, respondents in Reference Petition failed to file any reply nor any evidence was led by them. Reference Petition was accordingly decided by the learned Reference Court vide Award dated 17.09.2004, holding the petitioners therein to be entitled to compensation qua the land in issue at the rate of Rs.1662 per square metre. Said Award was assailed by the present appellant before this Court and vide judgment dated 05.09.2005, the Award was set aside and present appellant, who was respondent No.3 in the Reference Petition was granted opportunity to submit its response to the Reference Petition as well as to lead evidence.::: Downloaded on - 01/06/2020 20:23:01 :::HCHP 4
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5. In the Reference Petition, the petitioners therein had claimed compensation at the rate of 10,000/- per square metre.
viz-a-viz the acquired land on the ground that the land in issue had huge commercial value and its fertility, location as well as productive value was in fact not less than Rs.10,000/- per square metre. It was further the case of the reference petitioners that the acquisition of the land had rendered the remaining land of the petitioners worth less as the same stood adversely affected and accordingly, an amount of Rs.5,00,000/- was claimed on account of injurious affection and further a sum of Rs.25,00,000/- was claimed on account of severance of land. In addition, interest on solitium was also claimed.
6. In the reply, which was filed by respondent No.3 to the Reference Petition, preliminary objections were taken with regard to maintainability of the Reference Petition. Further stand taken in the same by the said respondent was that the land did not had any commercial value nor it was situated in the vicinity of any town, so as to render the same valuable. It was further the stand of respondent No.3 that no severance took place as entire holding of the petitioners was acquired.::: Downloaded on - 01/06/2020 20:23:01 :::HCHP 5
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7. On the basis of the pleadings of the parties, the following issues were framed by the learned Reference Court:-
"1. Whether LAC did not assess the market value adequately? If so what is the adequate market value? OPP.
2. Whether the reference petition is not maintainable in the present form? OPP.
3. Whether the petitioners are estopped from filing the petition as alleged? OPR.
4. Relief.
8. On the basis of the pleadings as well as the evidence which was led by the parties in support of their respective stands, the issues so framed were answered as under by learned Reference Court:-
"Issue No.1 : Yes. Rs.1108/- per square metre.
Issue No.2 : No.
Issue No.3 : No.
Issue No.4 : Petition allowed as per operative portion
of award".
9. Vide award dated 09.01.2006, the Reference Petition was answered by the learned Reference Courts in the following terms:-
" 34. In view of findings on issues above, it is held as under:-
(1) Petitioners are entitled to compensation for their land @ Rs.1108 per square mets. In addition they shall be entitled to:-
(a) Additional Compulsory acquisition charges @ 12% per annum from the date of notification that is on 17.2.2000 till the date of award, that is, 15.2.2002.
(b) Solatium @ 30% on the enhanced market value of the land.
(c) Interest on the enhanced amount of compensation @ 9% per annum from the date of possession till expiry of period of one year and thereafter @ 15% per annum till the amount is paid/deposited in the Court.::: Downloaded on - 01/06/2020 20:23:01 :::HCHP 6
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35. Let it be stated here that there is no evidence on record about the actual date of taking possession. But in the award there is a mention that the possession shall be given by the Thsildar 'immediately'. So it can be assumed that the possession was delivered immediately after the award. They why we can presume that possession was delivered on 15.2.2002. So the interest @ 9% is to be calculated from 15.2.2002. No costs in view of the very excessive claim set up by the petitioners. Memos of costs be prepared. File be consigned to record-room".
10. Feeling aggrieved by the Award so passed by the learned Reference Courts, respondent No.3 therein has preferred appeal No.406 of 2006. Cross-Objections No.424 of 2006 have been preferred by the respondents/land owners in the appeal against the said Award.
11. Appellant has challenged the Award passed by the learned Court below inter alia on the ground that the findings which have been returned while answering the Award by the learned Reference Court are contrary to the record as learned Reference Court has erred in not appreciating that the average value of the land which stood acquired at the time of its acquisition was much less than the amount which stood awarded as compensation by the learned Reference Court. It is further the case of the appellant that evidence on record does not suggests that the value of the acquired land was Rs.1108/-
per square metre and thus, the hike given by the learned ::: Downloaded on - 01/06/2020 20:23:01 :::HCHP 7 .
Reference Court in the amount of compensation is not sustainable in law as the same is against the record. It is further the case of the appellant that equivalence of the acquired land which was 'Ghasni' with the land which was being used for commercial purposes was highly unjustified and therefore also the Award passed by the learned Reference Court is not sustainable in law. Appellant has also disputed the grant of interest on enhance compensation as well as the findings returned by the learned Court below with regard to the date of delivery of possession of the land. No other point was urged.
12. On the other hand, while denying merit in the appeal which has been filed by the appellant herein, cross-objectors have prayed for enhancement of compensation awarded by the learned Reference Court inter alia on the ground that the evidence placed on record by the cross-objectors clearly demonstrated that market value of the acquired land was Rs.3000/- per square metre and said evidence was conveniently ignored by the learned Reference Court while holding that the land owners were entitled for compensation only to the tune of Rs.1108/- per square metre. It is further the case of the cross-
objectors that the earlier Award dated 17.09.2004 was passed by ::: Downloaded on - 01/06/2020 20:23:01 :::HCHP 8 .
the same Presiding Officer, in which the market value of acquired land at Mauja Saproon Mandi, stood determined as Rs.1662/- per square metre. On the strength of the said Award passed by the learned Reference Court, the cross-objectors have submitted that though the value of the land acquired was more than Rs.3000/- per square metre, yet they are restricting their claim to enhance amount of compensation to the tune of Rs.1662/- per square metre and have thus, prayed that the cross-objections be allowed by enhancing the amount of compensation from Rs.1108/- per square metre to Rs.1662/- per square metre.
13. The prayer so made in the cross-objections has been contested by the non-cross objectors/appellant, on the ground that as the award passed by the learned Reference Court was bad as the grant of compensation at the rate of Rs.1108/- per square metre was on the higher side, therefore, the prayer of the cross-objectors for grant of enhance compensation was liable to be dismissed.
14. I have heard learned counsel for the parties in the appeal as well as in the cross-objections and have also gone through the impugned award as well as the record of the case.
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15. A perusal of the record of the case demonstrates that in order to prove their case, reference petitioners examined four witnesses and they also placed on record various documents which stand exhibited as Ext.P1 to Ext.P11 as well as Ext.PW4/A, Ext.PW4/B, Ext.PA and Ext.PB. Similarly, the appellant herein examined three witnesses on its behalf before the learned Reference Court and placed on record Ext.RW2/A to Ext.RW2/H and Ext.RW2/J to Ext.RW2/O, reflecting the average value of the land, as well as Ext.RW3/A to Ext.RW3/F, which were copies of Sale Deeds.
16. A perusal of the award passed by the learned Reference Court demonstrates that it took into consideration five Sale Deeds exhibited on behalf of the reference petitioners and six Sale Deeds exhibited on behalf of the present appellant in order to arrive at the average value of the acquired land on the strength of the said sale instances quoted by the parties before it.
17. Incindently, neither of the party before this Court has disputed the genuineness or veracity of the Sale Deeds which were taken into consideration by the learned Reference Court to ::: Downloaded on - 01/06/2020 20:23:01 :::HCHP 10 .
arrive at the compensation amount which was liable to be paid to the land owners.
18. As is evident from the record of the case, the Notification under Section 4 of the Land Acquisition Act to acquire the land subject matter of this appeal was issued on 17.11.2019. The land in issue measuring 3586 square metre., comprised in khasra No.1576 was situated in village Saproon (Solan), Tehsil and District Solan, H.P.
19. As per Ext.P3 i.e. Sale Deed dated 31.07.1999, 84 square metre of land was sold in Mauja Saproon for an amount of Rs.43,000/-. Vide Sale Deed Ext.P5 dated 13.10.1998 pertaining to Mauja Ser, 52 square metre of land was sold for an amount of Rs.1,57,590/-. Similarly, vide Sale Deed Ext.P6 dated 10.09.1999 pertaining to Mauja Dehun, 192 square metre of land was sold for an amount of Rs.2,33,500/-. In terms of Sale Deed Ext.P7 dated 29.08.1998 pertaining to Mauja Kather, 279 square metre of land was sold for an amount of Rs.7,30,000/-. Similarly, vide Sale Deed Ext.P8 dated 18.06.1998 pertaining to Mauja Kather, 96 square metre of land was sold for an amount of Rs.2,88,000/-.
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20. A perusal of Ext.RW3/A dated 26.11.1998 pertaining to Mauja Saproon, demonstrates that 168 square metre of land was sold for an amount of Rs.44,670/-. Vide Ext.RW3/B i.e. Sale Deed dated 17.11.1998, again pertaining to Kauna Saproon, 126 square metre of land was sold for an amount of Rs.33,390/-.
Vide Sale Deed Ext.RW3/C dated 08.02.1999, pertaining to Mauja Saproon, 162 square metre of land was sold for an amount of Rs.48,000/-. Vide Ext.RW3/D dated 23.03.1999, pertaining to Mauja Saproon, 83 square metre of land was sold for an amount of Rs.17,000/-. Similarly, vide Ext.RW3/E dated 05.08.1999, pertaining to Mauja Saproon, 44 square metre of land was sold for an amount of Rs.14,000/- and vide Ext.RW3/F dated 29.10.1999, pertaining to Mauja Saproon, 155 square metre of land was sold for an amount of Rs.72,000/-.
21. Learned Reference Court in its wisdom has taken the average value of above sale instances to arrive at the figure of compensation which as per the said Court was payable to the reference petitioners.
22. In the Award under challenge, learned Reference Court has held that though the allegation of the petitioners was that the Sale Deeds produced on record by the respondents ::: Downloaded on - 01/06/2020 20:23:01 :::HCHP 12 .
therein could not be taken into consideration as they pertained to land which was far off from the land which stood acquired, however, the sale instances relied upon by the respondents before it could not be ignored. Similarly, learned Reference Court also held that reference petitioners had led satisfactory evidence on record to demonstrate that Mauja Ser, Mauja Dehun and Mauja Kather were quite near to the acquired land and Mauja Kather was just at a distance of 360 metre from the acquired land, whereas Mauja Dehun was at a distance of 120 metre and Mauja Ser was at a distance of 375 metre. Learned Reference Court also while taking note of Ext.P2, which was an agreement placed on record by the reference petitioners as per which, it stood agreed that 600 square metre of land was to be purchased at the rate of Rs.7000/- per square metre, held that said exhibit could not be relied upon as it was not difficult to procure a back dated stamp paper and prepare a document thereupon as it was a matter of record that no Sale Deed was executed pursuant to the purported entries of the said sale agreement.
23. A perusal of the record of the case demonstrates that the findings so returned by the learned Reference Court are duly borne out from the record of the case. There is evidence on ::: Downloaded on - 01/06/2020 20:23:01 :::HCHP 13 .
record to demonstrate that acquired land was adjacent to the National Highway and it was properly connected with a road and there were shops as also offices in close vicinity of the acquired land. A perusal of the statement of RW-1 Dr.R.M.Sharma, Officer In-charge of the present appellant at the relevant time demonstrates that in his cross-examination, he admitted the suggestion that in vicinity to the land acquired, there was office of the Telecommunication Department and in fact the office of the Zoological Survey of India was also nearby it. He also admitted in his cross-examination that there was a road at the base of the acquired land and in addition to their own office, there was residence of A.D.M. as well as office of Project Manager in close vicinity. He also stated in his cross-
examination that he had never said that the acquired land was not having any commercial value, though as per him, the land was 'Banjar'.
24. Thus, it is evident from the statement of the witness of the present appellant also that the land subject matter of this appeal was commercially viable and there were offices and residences of various departments including that of the appellant-department in close vicinity to the acquired land. It has ::: Downloaded on - 01/06/2020 20:23:01 :::HCHP 14 .
also come in his deposition that the land was connected with the road.
25. In this background, when one peruses the Award passed by the learned Reference Court, then the only conclusion which can be arrived at is this that the compensation which has been assessed by the learned Reference Court to be paid to the land owners is not excessive and is rational and reasonable. Learned Reference Court has not blindly relied upon all the Sale Deeds which were placed on record by the land owners or other documents placed on record by them. Similarly, he has not negated the Sale Deeds which were placed on record by the appellant. Learned Reference Court took average value of five of the Sale Deeds exhibited by the land owners and six Sale Deeds exhibited by the appellant. Thereafter, on the basis of the average value of said Sale Deeds, learned Reference Court arrived at average value of the acquired land to be Rs.1108/- per square metre.
26. I am not going into the details of the Sale Deeds in issue or statements of other witnesses of either of the parties because it is not the case of the appellant that there is misreading or mis-appreciation of the evidence on record. The ::: Downloaded on - 01/06/2020 20:23:01 :::HCHP 15 .
argument of the appellant is that value of the acquired land arrived at Rs.1108/- per square metre by the learned Reference Court is not decipherable from the evidence on record. This contention of the appellant is merit less. As I have already mentioned hereinabove that the value of the acquired land was arrived at by the learned Reference Court by taking average value of five Sale Deeds exhibited by the land owners and six Sale Deeds exhibited by the appellant. Due application of judicial mind by the learned Reference Court is further evident from the fact that agreement to sell placed on record by the land owners to prove that the land in vicinity was agreed to be sold at Rs.7000/- per square metre has been ignored by the learned Reference Court and similarly, while dealing with the sale value of land subject matter of the Sale Deed Ext.P3, learned Reference Court took into consideration the value of the land assessed for the purpose of payment of stamp duty rather than the value for which the land was sold. This all demonstrates that there was due judicial application of mind by the learned Reference Court and the average value arrived at by the learned Court below is not based on conjecture or surmises.
Therefore, this Court does not finds any merit in the contention ::: Downloaded on - 01/06/2020 20:23:01 :::HCHP 16 .
of the appellant that the Award passed by the learned Reference Court is not sustainable because the evidence on record does not suggests the value of acquired land to be Rs.1108/- per square metre.
27. As far as contention of the appellant that the land acquired was 'Ghasni' is concerned, that also does not furthers the cause of the appellant as it is settled law that while assessing the value of the acquired land, the kind of said land is not to be taken into consideration, but the purpose for which the same is being acquired has to be taken primarily into consideration. In the present case, the land stood acquired for the purpose of construction of residential complex for the employees of the appellant and by no stretch of imagination, it can be said that appellant would have had chosen such land for the purpose of construction of residences for its employees which was far away from habitation or was completely cut off from the rest of the world and not connected by way of road etc.
28. On the other hand, prudence says that appellant must have taken into consideration as to where the land was situated and its proximity to the habitation nearby as well as the ::: Downloaded on - 01/06/2020 20:23:01 :::HCHP 17 .
factum of the roads being connected with the Highways etc. before acquiring the same.
29. The last contention raised on behalf of the appellant that the Award passed by the learned Court below with regard to date of delivery of possession of land is bad in law also warrants rejection for the reason that during the course of arguments, learned counsel for the appellant could not point out the actual date of taking possession of the land and therefore, the findings in this regard returned by the learned Reference Court cannot be faulted with.
30. Accordingly, in view of the findings returned hereinabove, as this Court does not finds any infirmity with the Award passed by the learned Reference Court and further as there is no merit in the present appeal, the same is, accordingly, dismissed.
Cross-Objections No.424 of 2006
31. By way of these Cross-Objections, the cross-
objectors/land owners have prayed for enhancement of the compensation for their land which has been acquired for the benefit of non-cross objectors from Rs.1108/- per square metre to Rs.1662/- per square metre.
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32. Learned Senior Counsel, appearing for the cross-
objectors, has argued that as the learned Reference Court earlier vide its Award dated 17.09.2004, had held the value of the land acquired to be Rs.1662/- per square metre for the purpose of compensation, then subsequently the learned Reference Court could not have had reduced this value. Learned Senior Counsel also argued that there was no fresh evidence placed on record by the non-cross objectors, which could have had persuaded the learned Reference Court from awarding amount of compensation less than that as was arrived at by the said Court in its earlier Award dated 17.09.2004. Accordingly, prayer has been made to enhance the compensation at the rate of 1662/- per square metre, on the strength of the reasoning which was given by the learned Reference Court in its order darted 17.09.2004.
33. Learned counsel for the non-cross objectors have denied the claim for enhancement of compensation and have submitted that as the amount awarded by the learned Reference Court, vide Award under challenge is also on the higher side, therefore, the same warrants reduction rather than enhancement.
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34. Having heard learned Senior Counsel for the cross-
objectors as well as learned counsel for the non-cross-objectors, this Court is of the view that there is no infirmity with the award which is subject matter of these cross-objections and the amount of compensation as has been awarded by the learned Reference Court, vide Award dated 09.01.2006, calls for no interference. In addition to the reasoning which already assigned by this Court while dismissing the appeal filed by the appellant/non-cross objector, it is held that the cross-objectors otherwise also cannot place any reliance on the findings which stood returned by the learned Reference Court in its earlier Award dated 17.09.2004, for the simple reason that the said award was set aside by this Court in RFA No.280 of 2005, titled as Geological Survey of India Versus Kuldeep Chand Sood and others, dated 05.09.2005 and that too in the following terms:-
"After having argued the matter for some time, learned counsel for contesting respondents No.1 to 8 stated that he has instructions to also got this award set aside. As according to him, pendency of this appeal is not in the interest of either party keeping in view the stand of the appellant in this appeal.
Looking to the facts detailed in the appeal and also after having examined the record of the trial Court with the assistance of the learned counsel for the parties, award dated 17.9.2004 passed by the learned Addl. District Judge (Presiding Officer, Fast Track Court) Solan, District Solan, in case No.25 FT/4 of 2004/2002 titled Kuldeep Chand Sood and others Vs. State of H.P. and others, is hereby quashed and set aside. While setting aside the award and ::: Downloaded on - 01/06/2020 20:23:01 :::HCHP 20 .
allowing this appeal, the case is remanded back to the trial Court with a direction to ensure that the case is listed every fortnight until it is finally disposed off ".
35. In my considered view, when the earlier award passed by the learned Reference Court dated 17.09.2004, was quashed and set aside by this Court and that too, on the instructions imparted to this Court by the learned counsel appearing for the cross-objectors that the award in issue be set aside as was being prayed for by the appellant in RFA No.280 of 2005, the cross-objections cannot rely upon any reasoning or findings or observations made in the said Award. Otherwise also, during the course of argument, learned Senior Counsel for the cross-objectors could not convince this Court that the amount of compensation assessed by the learned Reference Court, vide Award dated 09.01.2006 was unreasonably on the lower side.
36. During the course of arguments, learned counsel for the cross-objectors also submitted that learned Reference Court erred in not granting appropriate compensation to the land owners on account of injurious affection and severance of land.
37. A perusal of the Award demonstrates that the learned Reference Court held that on these two points, nothing on oath was said by the land owners to demonstrate that they were liable to be paid compensation under these heads. During the course ::: Downloaded on - 01/06/2020 20:23:01 :::HCHP 21 .
of arguments, learned counsel for the cross-objectors could not point out from the record that said observations made by the learned Reference Court were contrary to the record and there was material placed on record by the land owners to demonstrate that they were liable to pay compensation under these two heads. Therefore, these contentions raised on behalf of the cross-objectors is also without any merit.
38. As I have already discussed in detail while dismissing the appeal filed by the appellant/ non-cross objector that the findings returned by the learned Reference Court while arriving at the amount of compensation are just and reasonable findings which are duly borne out from the record of the case, I do not find any merit in these cross-objections and the same are also, accordingly, dismissed. Pending miscellaneous application, if any, stand disposed of. Interim order, if any, stands vacated.
(Ajay Mohan Goel) Judge May 29, 2020 (Rishi) ::: Downloaded on - 01/06/2020 20:23:01 :::HCHP