Himachal Pradesh High Court
State Of Hp Through Dc Solan And Others vs Prem Parkash And Others on 12 July, 2017
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RFA No. 575 of 2011 along with
RFA Nos. 576 to 583 of 2011.
.
Decided on: 12.7.2017.
1. RFA No. 575 of 2011.
State of HP through DC Solan and others
....Appellants.
Versus
Prem Parkash and others
... Respondents.
______________________________________________________
2. RFA No. 576 of 2011.
State of HP through DC Solan and others
r ....Appellants.
Versus
Hari Dass and others
... Respondents.
______________________________________________________
3. RFA No. 577 of 2011.
State of HP through DC Solan and others
....Appellants.
Versus
Jai Prakash and others
... Respondents.
______________________________________________________
4. RFA No. 578 of 2011.
State of HP through DC Solan and others
....Appellants.
Versus
Sudershan Dass and others
... Respondents.
______________________________________________________
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5. RFA No. 579 of 2011.
State of HP through DC Solan and others
....Appellants.
Versus
.
Mohamad Beg
... Respondent.
______________________________________________________
6. RFA No. 580 of 2011.
State of HP through DC Solan and others
....Appellants.
Versus
Jagdish Dass and others
... Respondents.
______________________________________________________
7. RFA No. 581 of 2011.
State of HP through DC Solan and others
....Appellants.
Versus
Rajesh Kumar and others
... Respondents.
______________________________________________________
8. RFA No. 582 of 2011.
State of HP through DC Solan and others
....Appellants.
Versus
Nand Lal
... Respondent.
______________________________________________________
9. RFA No. 583 of 2011.
State of HP through DC Solan and others
....Appellants.
Versus
Ram Chand and others
... Respondents.
______________________________________________________
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3
Coram
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 No.
.
For the appellants. : Mr. Vikram Thakur, Deputy Advocate
General in all the appeals.
For respondents : Mr. Vijay Sharma, Advocate for
respondent(s) in all the cases.
Ajay Mohan Goel, J. (Oral).
All these appeals arise out of the common award passed by the Court of learned Additional District Judge, Solan, District Solan in Land Petition No. 4FTC/4 of 2009 titled Shri Sagar Dass (Deceased through Lrs) Sh. Prem Parkash and others Vs. State of H.P. through Distt. Collector, Solan and others and other batch matters dated 30.4.2011 being the lead case. Prayer made in these appeals is to set aside the said award dated 30.4.2011 primarily on the ground that the compensation assessed in these reference petitions by learned Additional District Judge is on the higher side.
2. Brief facts necessary for adjudication of these appeals are that land of the respondents (hereinafter referred to as the 'claimants') situated in village Brawari Tehsil and District Solan was acquired for 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 18/07/2017 23:57:42 :::HCHP 4the purpose of construction of Bill Haripur road by Himachal Pradesh Public Works Department. Notification under Section 4 of the Land .
Acquisition Act (in short 'the Act') was published in H.P. Rajpatra on 25.8.2007 and two vernacular newspapers on 11.8.2007 and 13.8.2007. Thereafter Notification under Sections 6 and 7 of the Act was also published in Rajpatra on 12.3.2008 and daily two vernacular newspapers on 19.3.2008 and 21.3.2008. The land acquired by way of said Notification was measuring 13-0 bighas, category of which was 'Katul' land. Land Acquisition Collector vide Award No.22 of 2008 announced on 22.10.2008 assessed the rate of the land acquired at the rate of Rs. 10.00 lac per bigha and Rs. 50,000/- per biswa and that rate has been approved by learned District Collector, Solan vide office letter PBW(B)A(7)1-101/2006 dated 6.10.2008.
3. Feeling aggrieved by the award so passed by Land Acquisition Collector, claimants filed reference petitions. The reference petitions so filed by claimants were allowed by learned Court below in the following terms:-
"In view of my findings on the issues above, all the petitions are hereby allowed and disposed of with costs to the effect that the petitioners are entitled to the market value of the acquired lands at the rate of Rs. 50,000/- per biswa. The petitioners are also entitled to additional compensation Under Section 23(1-A) of the Act, at the rate of 12% per annum on the awarded enhanced amount of compensation from the date of publication of notification Under Section 4 of the Act to the date of the Award of the Land Acquisition Collector or to the date of taking possession of the ::: Downloaded on - 18/07/2017 23:57:42 :::HCHP 5 lands whichever is earlier. The petitioners are also entitled to 30% solatium Under Section 23(2) of the Act on such enhanced amount of compensation in consideration of compulsory nature of the acquisition. Further, the petitioners are entitled to interest @ 9% for one year from the date of the Collector took the possession .
of the acquired lands and thereafter @ 15% per annum till payment. The Land Acquisition Collector is directed to assess the enhanced amount of compensation in the manner stated above, in consonance with the provisions of the Land Acquisition Act.
This Award be placed on the record of the Reference petition No. 4FTC/4 of 2009 while its authenticated copies be placed on the consolidated petitions. Memo of costs be prepared accordingly."
4. The award so passed by learned court below stands assailed by present appellants who were respondents before learned court below primarily on the ground that learned reference court erred in awarding uniform rate for the entire land acquired without appreciating that uniform rate could not have been applied for assessing the market value of the land which obviously depended upon the kind and classification of the land. No other point is urged.
5. I have heard learned counsel for the parties and have also gone through the records of the case as well as award passed by learned court below.
6. 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 ::: Downloaded on - 18/07/2017 23:57:42 :::HCHP 6 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.
(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 ::: Downloaded on - 18/07/2017 23:57:42 :::HCHP 7 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 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 ::: Downloaded on - 18/07/2017 23:57:42 :::HCHP 8 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 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."
7. 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 ::: Downloaded on - 18/07/2017 23:57:42 :::HCHP 9 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).
8. 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.
9. 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.
10. 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 ::: Downloaded on - 18/07/2017 23:57:42 :::HCHP 10 i.e. for the purpose of construction of Bill Haripur road. 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.
In view of the above discussion, in my considered view there is no infirmity with the award passed by learned court below which stands assailed by way of these appeals, as it could not be demonstrated during the course of arguments that the findings returned by learned court below are perverse, illegal or erroneous. As such as there is no merit in the present appeals, the same are dismissed, so also pending miscellaneous applications if any.
(Ajay Mohan Goel) Judge 12th July, 2017.
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