Himachal Pradesh High Court
Ntpc Limited vs Shri Amar Singh & Another on 13 December, 2016
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RFA No. 325 of 2010 .
Date of Decision : December 13, 2016.
NTPC Limited . ...Appellant.
Versus
Shri Amar Singh & another. ...Respondents.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
of Whether approved for reporting? 1Yes For the Appellant : Mr. Neeraj Gupta, Advocate, for the rt appellant-NTPC.
For the Respondents: Mr.Naresh K. Sood, Sr. Advocate with M/s Aman Sood and Varun Rana, Advocates, for respondent No.1.
Mr. Shrawan Dogra, Advocate General with Mr.Puneet Rajta, Dy. AG., for respondent No.2 -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 `4,35,447.26 to `5,00,000/- per bigha. The Collector himself observed that though the market value of the 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:44:02 :::HCHP 2acquired land situate in Village Kayan, the village in question, could be `4,90,000/-, but required to be scaled down to `3,54,244/-, but however, in terms of award No.2 .
of 2002, Collector Land Acquisition, determined the market value of the acquired land awarding different rates, classif ication/category wise, ranging from `90,718.82 to `4,35,447.26 per bigha.
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2. In terms of the impugned award dated 30.07.2010, passed by District Judge, Mandi, H.P., in Reference Petition No.163 of 2003, titled as Amar Singh rt Versus LAC, Kol Dam Project, Sunder Nagar, District Mandi and another, 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 and while doing so, it referred to and relied upon ten exemplar sale deeds, produced by the claimants as also exemplar award dated 17.01.2009 (Ex.PX), so passed by its Predecessor, whereby market value with respect to land acquired in Village Ropa, came to be determined @ `5,00,000/- per bigha. Undisputedly villages Ropa and Kayan are adjoining to each other.
::: Downloaded on - 15/04/2017 21:44:02 :::HCHP 33. Certain facts are not in dispute: (i) 252-12-09 bighas of land came to be acquired in Mauja Kayan, Tehsil Sunder Nagar, District Mandi, H.P., with the .
publication of notification in the official gazette on 19.12.2000, so issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act);
(ii) The acquisition proceedings concluded with the of passing of Collector's award No. 2 of 2002 dated 19.07.2002, under Section 11 of the Act and the State taking over possession of the land; (iii) The purpose of rt 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.163 of 2003, 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 evidence on record of ::: Downloaded on - 15/04/2017 21:44:02 :::HCHP 4 either any requirement or any developmental activity carried out on the spot.
4. 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.
5. It be only observed that out of the acquired of land, maximum land is of a superior quality.
6. With these admitted/undisputed facts, material placed on record by the parties rt is being appreciated for 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 @ `15,00,000/- 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 Section 18 of the Act, Court is duty bound to determine ::: Downloaded on - 15/04/2017 21:44:02 :::HCHP 5 the market value, which is just, fair and reasonable, on the basis of material placed on record by the parties.
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. Mat erial, in its entirety, stands considered by the Court below.
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10. With vehemence, Mr. Neeraj Gupta, learned counsel, contends that Reference Court erred in considering the fact that before the Collector, claimants rt 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. Naresh K. Sood, 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 21:44:02 :::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 21:44:02 :::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 21:44:02 :::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 owner of an adjoining ::: Downloaded on - 15/04/2017 21:44:02 :::HCHP 9 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 of 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, rt 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.
::: Downloaded on - 15/04/2017 21:44:02 :::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.
12. Significantly while responding to the reference petition or at the time of recording evidence, such of 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 @ `25,00,000/- per bigha, on uniform basis.
13. In any event, Reference Court is duty bound to determine such 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 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 21:44:02 :::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.
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15. While determining the market value, Collector accounted for certain sale transactions with respect to the village in question and formed an opinion that even though the market value, irrespective of its classification, would be `4,90,455.85 per bigha, but however, it did not "appear" to be true representative of the market value for if sale transactions pertaining to a contiguous village i.e. Ahan, were considered then the market value of the acquired land could be `3,54,244/- per bigha. But then significantly and eventually , the Collector himself determined the market value to be as under:-
Market value determined as per the classification of land Class of Area LR per Total LR Rate per ::: Downloaded on - 15/04/2017 21:44:02 :::HCHP 12 land bigha bigha Barani =117-1-2 0.72 p 84.279 435447.26 Abbal Barani =77 -17- 0.62p 48.290 374969.20 Doyam 15 Bagicha =14 -10- 0.62p 9.007 374969.06 Barani 11 .
Banjar =16 -6-15 0.15p 2.450 90695.68 Kable Kasht Khadyatar =3-19-10 0.13p 0.516 78508.87 Gair =22 -16- 0.15p 3.426 90718.82 Mumkin 16 Grand =252-12- 147.968 3,54,243.54 Total 09 of
16. Record reveals that for establishing their claims, claimants have proved on record the following rt ten sale transactions (Ex.P-1 to Ex.P -10), through sixteen witnesses, namely, Harender Sen (PW.1), Amar Singh (PW.2), Gandhi Ram (PW.3), Ghamira (PW.4), Bajiru (PW.5), Briju (PW.6), Babu Ram son of Sunder Ram (PW.7), Babu Ram son of Bansi Ram (PW.8), Ranjit (PW.9), Roop Lal (PW.10), Khazana Ram (PW.11), Sohan Singh (PW.12), Sunder (PW.13), Smt. Revatu (PW.14), Smt. Neelam Thakur (PW.15) and Yadvinder (PW.16):-
Exts. Documents Date of Area in Mauja Sale price sale Bigha Ex.P1 Sale deed 20.12.1988 0-3-0 Kayan `10,000/- Ex.P2 Sale deed 5.5.2000 0-2-6 Kayan `1,10,000/- Ex.P3 Sale deed 7.4.2000 0-1-10 Kayan `60,000/- Ex.P4 Sale deed 4.4.2000 0-2-0 Kayan `80,000 Ex.P5 Sale deed 7.4.2000 0-2-0 Kayan `80,000/- Ex.P6 Sale deed 26.7.2000 0-2-0 Kayan `1,00,000/- Ex.P7 Sale deed 12.5.2000 0-1-0 Kayan `50,000/- Ex.P8 Sale deed 4.4.2000 0-1-10 Kayan `60,000/-::: Downloaded on - 15/04/2017 21:44:02 :::HCHP 13
Ex.P9 Sale deed 1.5.2000 0-3-0 Kayan `1,20,000/- Ex.P10 Sale deed 5.5.2000 0-2-6 Kayan `1,10,000/-
17. Close examination of testimonies of the .
aforesaid witnesses would only establish: (i) the sale transactions to have been proven on record, in accordance with law, for the vendor and vendee stepped into the witness box; (ii) S imilarity of the exemplar sale of deed with that of acquired land vis -a-vis its potential, use and nature stands proved; (iii) the beneficiary never doubted veracity of the witnesses and their testimony rt about the authenticity and genuineness of the sale transactions; and (iv) the land situate in village Kayan is similar to the land situate in adjoining village Ropa, Tehsil Sunder Nagar , District Mandi, Mohal Tatapani in Tehsil Karsog, District Mandi and Mohal Bahot Kasol in District Bilaspur.
18. There is also no evidence, establishing the fact that the said sale transactions were either speculative or fictitious in nature. There is no evidence establishing that these sale transactions came to be effected in anticipation and vain hope of the claimants of their land being acquired for this very same public ::: Downloaded on - 15/04/2017 21:44:02 :::HCHP 14 purpose. As such, this Court is of the view that the said sale transactions are genuine.
19. Noticeably the District Judge has returned .
contradictory findings on this issue. In paragraphs 32, 33 and 34, it expressed doubts about the transactions being genuine. But however in the following paragraph 35 itself, itself considered these very sale transactions for of justifying re-determination of the market value. While rendering its opinion in paragraphs 32, 33 and 34 of the impugned award, Court below ventured into adventurism rt and formed its opinion without any basis. Though the market value in terms of these exemplar transactions works out to be `7,50,000/- per bigha, but by allowing deductions up to the extent of 33.13 %, the Reference Court found the fair market value of the acquired land to be `5,00,000/- per bigha.
20. An endeavour was made to justify such conclusion by also relying upon award dated 17.01.2009, passed by the Presiding Officer, Fast Track Court Mandi, District Mandi, in Reference Petition No.78/2002/74 of 2005, titled as Kirpa and others versus LAC, N.T.P.C. (Kol Dam) and anoth er (Ex.PX).
::: Downloaded on - 15/04/2017 21:44:02 :::HCHP 1521. Now if one were to peruse the testimonies of the claimants' witnesses, one would find even this award to have been proven, in accordance with law. In one .
voice, the witnesses have categorically deposed, which fact stands unrebutted, that "The market value of the land of mohal Ropa, irrespective of classification has been determined at Rs.5 lacs per bigha". Under these of circumstances, Reference Court, was right in relying upon the said award (Ex.PX).
22. Apparently , contention that award (Ex.PX) rt could not be relied upon, also merits rejection for the reason that witnesses themselves have deposed about the similarity of the acquired land with that of exemplar award, on which there is no cross-examination. Their testimony goes unrebutted.
23. Also, and most significantly, in the award (Ex.PX), the Reference Court took into account fourteen sale transactions, pertain ing to Village Kayan, which also stand proved by the claimants in the proceedings in question. Hence very same transactions stand commonly proved in both the reference petitions .
::: Downloaded on - 15/04/2017 21:44:02 :::HCHP 1624. Also award (Ex.PX), has now attained finality.
Decision rendered by this Court in NTPC Ltd. Versus Kirpa and others, Latest HLJ 2016 (HP) 253, subject matter of .
award (Ex.PX), stands affirmed by Hon'ble the Supreme Court of India. In the said decision this Court observed that:-
"18.Mr. N.K. Sood, Sr. Advocate, has drawn the attention of the Court to Award No.2 of 2002 vide of Ext. P-15. Award No. 2 of 2002 pertains to the acquisition of land in village Kyan for Kol Dam Hydel Project. The compensation was awarded at rt the rate of Rs. 4,35,447.26 paise per bigha. The notification under Section 4 of the Act, as noticed hereinabove, by acquiring the land of Village Ropa, was also published on 11.12.2000. Mohal Kyan is adjoining to Mohal Ropa. It has also come on record that village Ropa is having better quality of land, since it is irrigated vis -a-vis Mohal Kyan. The HP PWD has already purchased land at village Ropa for a consideration of Rs. 4,62,000/- per bigha. The land of Mohal Kyan was though sold in small plots, in the year 2000, but for approximate price of Rs.40,000/- Rs 50,000/- per biswa. The learned Reference Court has correctly taken into consideration the sale transactions made vide sale deeds Ext. P-1 and Ext. PW-5/A and award No.2 of 2002 Ext. P-15, while determining the market value of the acquired land of the claimants."::: Downloaded on - 15/04/2017 21:44:02 :::HCHP 17
25. Noticeably it was award No.2 of 2002, so passed by the Collector, subject matter of the present appeal, was relied upon by this Court while affirming .
findings returned by the Reference Court in award (Ex.PX).
26. Specific attention is invited to sale transactions dated 17.12.1988 (Ex.RA), 10.08.1989 of (Ex.RB) and 17.11.1999 (Ex. RC), so placed on record by the beneficiary. Sale transactions (Ex.RA and Ex.RB) pertain to the adjoining Mohal, whereas, sale transaction rt (Ex.RC) pertains to the Mohal in question. Record reveals that only certified copies of the sale deeds were tendered in evidence. No doubt, in view of the statutory provisions (Sectio n 51-A of the Act) and the law laid down by the Apex Court in Cement Corpn. of India Ltd. Versus Purya and others, (2004) 8 SCC 270, these sale transactions cannot be ignored, but however, there is no evidence on record, establishing comparability of the acquired land with these exemplar sale transactions. No ocular evidence was led by the beneficiary. In this view of the matter, these sale transactions cannot be accounted for, ::: Downloaded on - 15/04/2017 21:44:02 :::HCHP 18 for just determination of a fair market value of the acquired land.
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 of 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.
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29. Hence in the given facts and circumstances, no interference is warranted. It cannot be said that the findings retu rned 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.
31. Quite evidently, in terms of award No.2 of 2002, so passed by the Collector, several land reference petitions came to be clubbed and disposed of by the common impugned award dated 30.07.2010 , passed by District Judge, Mandi, in Reference Petition No.163 of ::: Downloaded on - 15/04/2017 21:44:02 :::HCHP 19 2003, titled as Amar Singh Versus LAC, Kol Dam Project and another . Common evidence was led by the parties in land Reference Petition No.163 of 2003, subject matter of .
the present appeal. 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 of impugned award, pending before this Court. Registrar (Judicial) to take appropriate instructions from Hon'ble the Chief Justice for listing of such connected appeals , rt before the appropria te 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 21:44:02 :::HCHP