Himachal Pradesh High Court
Ntpc Limited vs Shri Naresh Kumar & Others on 13 December, 2016
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RFA No. 179 of 2012 .
Date of Decision: December 13, 2016.
NTPC Limited. ...Appellant.
Versus
Shri Naresh Kumar & others. ...Respondents.
Coram:
of
The Hon'ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the Appellant: Mr. Chandernarayan Singh, rt Advocate, for the appellant-NTPC.
For the Respondents: Mr. Vinay Kuthiala, Sr. Advocate, with Mr.Diwan Singh Negi, Advocate, for respondents No.1 to 3.
Mr. Shrawan Dogra, Advocate General with Mr.Puneet Rajta, Dy. AG., for respondent No.4-State.
Sanjay Karol, J (oral).
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 `3,43,199.00 to `5,00,000/- per bigha.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:44:04 :::HCHP 22. In terms of award No.9 of 2003, Collector Land Acquisition, determined the market value of the acquired land, awarding different rates, classification/category .
wise, ranging from `76,240/- to `3,43,199/- per bigha.
3. In terms of the impugned award dated 29.11.2011, passed by District Judge, Mandi, H.P., in Reference Petition No.75 of 2006, titled as Naresh Kumar of and others Versus LAC, N.T.P.C.,(Kol Dam), District Bilaspur and another, the Reference Court re-determined the market value of the entire acquired land, irrespective rt of its category/classification, by uniformly awarding a sum of `5,00,000/- per bigha, and while doing so, it referred to and relied upon awards dated 26.07.2011, passed by District Judge, Mandi, in Reference Petition No.81-A of 2008, titled as Sher Singh Versus N.T.P.C. & another (Ex.PA); 30.07.2010, passed by District Judge, Mandi, H.P., in Reference Petition No. 163 of 2003, titled as Amar Singh Versus Land Acquisition Collector Kol-Dam & another (Ex.A1); so passed by its Predecessor as also Collector's award No.2 of 2002, dated 19.07.2002 (Ex.P1); and award No.5 of 2003, dated 15.01.2003 (Ex.P2), produced by the claimants, whereby market ::: Downloaded on - 15/04/2017 21:44:04 :::HCHP 3 value with respect to land acquired in Mohals Kayan and Ropa respectively, came to be determined @ `5,00,000/-
per bigha.
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4. Certain facts are not in dispute: (i) 22-17-11 bighas of land came to be acquired in Mauja Doghri, Tehsil Sundernagar, District Mandi, H.P., with the publication of notification in the official gazette on of 19.12.2000, so issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act);
(ii) The land acquisition proceedings concluded with the rt issuance of Collector's award No.9 of 2003 dated 15.12.2003, under Section 11 of the Act and the State taking over possession of the land; (iii) The 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.75 of 2006) 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 and only the beneficiary has filed the present appeal(s) under Section 54 of the Act; (vi) It is the ::: Downloaded on - 15/04/2017 21:44:04 :::HCHP 4 common case of the parties that the entire acquired land came to be submerged with the construction of Dam by the beneficiary. Also there is no evidence on record of .
either any requirement or any developmental activity carried out on the spot.
5. It is contended on behalf of the claimants that since they have not assailed the impugned award, as of such, they are satisfied with the market value, so determined by the Reference Court.
6. With rt these admitted/undisputed facts, material placed on record by the parties is being appreciated for the just decision of the case.
7. It is a settled principle of law that onus of establishing true market value of the acquired land, higher than the one which stands determined by the Collector, is always upon the claimants.
8. Perusal of the Collector's award reveals that claimants themselves claimed compensation at `20,00,000/- per bigha. But then it was category/classification wise.
9. It is a settled principle of law that Collector's award is a mere offer and in the proceedings under ::: Downloaded on - 15/04/2017 21:44:04 :::HCHP 5 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.
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The 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 of entirety, stands considered by the Court below.
10. With vehemence, Mr. Chandernarayan Singh, learned counsel, contends that Reference Court erred in rt considering the fact that before the Collector claimants had themselves elected for award of compensation on the basis of classification/category, hence they were precluded from seeking re-determination of the market value of the acquired land on uniform basis.
11. To rebut the same, Mr. Vinay Kuthiala, learned Senior 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 :::: Downloaded on - 15/04/2017 21:44:04 :::HCHP 6
(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 of 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 rt 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 ::: Downloaded on - 15/04/2017 21:44:04 :::HCHP 7 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.
of (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.
rt (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 ::: Downloaded on - 15/04/2017 21:44:04 :::HCHP 8 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 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 of 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 rt 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 under acquisition. disadvantageous factor which would deter a purchaser.
7. special value for an ::: Downloaded on - 15/04/2017 21:44:04 :::HCHP 9 owner of an adjoining property to whom it may have some very special advantage.
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(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 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 rt 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 ::: Downloaded on - 15/04/2017 21:44:04 :::HCHP 10 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.
of
12. Significantly while responding to the Reference Petition or at the time of recording evidence, such rt objection never came to be taken by the beneficiary. Even before this Court, it is not a pleaded ground in the memo of appeal. In fact, as is evident from the reference petition, claimants had claimed rates @ `50,00,000/- per bigha on uniform basis.
13. In any event, Reference Court is duty bound to determine such of the market value, which is just, fair and reasonable.
14. 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 Supreme Court in Viluben Jhalejar Contractor (Dead) by ::: Downloaded on - 15/04/2017 21:44:04 :::HCHP 11 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 of Acquisition Collector & another Versus Jatinder Singh, decided on 01.06.2016 and other connected matters. As such, at this point in time, in view of admitted/undisputed rt factual matrix, as noticed earlier, it would not be permissible for the beneficiary to raise such objections.
15. Collector determined the market value in the following manner:-
"Therefore, by applying this method the apportionment of the value of the land has been done on the basis of land revenue (parta bandobasti) in the proportion of 4:5:1 between cultivated & uncultivated and as a result the rates of market value for village Doghri per bigha arrived at for majrua (cultivated) Rs. 3,43,199.00 (Rupees Three Lacs Forty Three Thousand One Hundred and Ninety Nine only) and for gair majrua (uncultivated) Rs. 76,240.00 (Rupees Seventy Six Thousand Two Hundred and Forty only)."::: Downloaded on - 15/04/2017 21:44:04 :::HCHP 12
16. Now significantly, no evidence stands led both by claimants as also the beneficiary to establish similarity of the use, potential and nature of the .
exemplar sale deeds with that of the acquired land. But however, as is evident from the record, while re-
determining the market value of the acquired land at `5,00,000/- per bigha and uniformly awarding the same, of Reference Court referred and relied upon the exemplar awards dated 26.07.2011 (Ex.PA) and 30.07.2010 (Ex.A1) as also Collector's award No.2 of 2002, dated 19.07.2002 rt (Ex.P1); and award No.5 of 2003, dated 15.01.2003 (Ex.P2). Exemplar award (Ex.A1) pertains to village Kayan and exemplar award (Ex.PA) pertains to village Jartu.
17. It is a matter of record that in terms of these exemplar awards, market value of the acquired land stands uniformly re-determined at `5,00,000/- per bigha and the aforesaid award (Ex.PA) stands upheld by this Court in RFA No. 594 of 2011, titled as N.T.P.C. Versus Sher Singh & another, decided on 13.12.2016. Whereas, award (Ex.A1) now stands upheld by this Court in RFA No. 325 of 2010, titled as NTPC Ltd. Versus Amar Singh and ::: Downloaded on - 15/04/2017 21:44:04 :::HCHP 13 another, decided on 13.12.2016. Also Collector's award No.2 of 2002 (Ex.P1) stands upheld by this Court in RFA No. 325 of 2010, titled as NTPC Ltd. Versus Amar Singh .
and another, decided on 13.12.2016 as also NTPC Ltd.
Versus Kirpa and others, Latest HLJ 2016 (HP) 253.
18. From the testimonies of witnesses Naresh Kumar (PW.1), Prem Singh (PW.2), Jagannath (PW.3) and of Rajesh Kumar (PW.4), it is evidently clear that the acquired land is similar with regard to its use, nature and potentiality with that of the exemplar awards referred rt hereinabove. Since the awards pertaining to Mohal Ropa, Kayan and Jartu, stand affirmed, this Court finds no reason as to why present claimants be discriminated, more so, for the reason that there is evidence with regard to similarity and potentiality of the acquired land.
Also there is evidence by way of exemplar sale deeds, establishing the reasoning adopted by the Reference Court, in re-determining the market value at `5,00,000/-
per bigha to be just, fair and reasonable.
19. The contention that awards (Ex.PA and Ex.A1) also could not have been relied upon, also merits rejection for the reason that witnesses themselves have ::: Downloaded on - 15/04/2017 21:44:04 :::HCHP 14 deposed with regard to the similarity of the acquired land with that of the said exemplar awards, with regard to which there is no cross-examination.
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20. 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 misplaced for the decision is rendered in the attending of 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.
rt
21. No other point urged or proved.
22. 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.
23. Cross-objection, if any, shall also stand disposed of.
24. Quite evidently, in terms of award No.9 of 2003, so passed by the Collector several land reference petitions came to be clubbed and disposed of by the common impugned award dated 29.11.2011, passed by ::: Downloaded on - 15/04/2017 21:44:04 :::HCHP 15 District Judge, Mandi, in Reference Petition No.75 of 2006, titled as Naresh Kumar and others Versus LAC and another. Common evidence was led by the parties in .
land Reference Petition No.75 of 2006, subject matter of the present appeal. Learned counsel for the parties contend that decision rendered in the present appeal would automatically apply to other connected matters of which are pending before this Court. Registrar (Judicial) to take appropriate instructions from Hon'ble the Chief Justice for listing of such connected appeals before the rt appropriate Court, particulars whereof shall also be supplied by learned counsel for the parties.
(Sanjay Karol), Judge.
December 13, 2016 (Purohit/PK) ::: Downloaded on - 15/04/2017 21:44:04 :::HCHP