Himachal Pradesh High Court
Ntpc Ltd. Kol Dam vs Lalman & Another on 11 January, 2017
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RFA No. 510 of 2012-C Date of Decision: January 11, 2017 .
NTPC Ltd. Kol Dam, Barmana. ...Appellant.
Versus Lalman & another. ...Respondents.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1No.
of For the Appellant: Mr. Jagdish Thakur, Advocate, for the appellant-NTPC.
For the Respondents: Nemo for respondent No.1.
rt Mr.R.S. Verma, Additional Advocate General, for respondent No.2-State.
Sanjay Karol, J (oral).
The acquisition proceedings pertain to the Collector's award No.59 of 2007, dated 01.02.2007, pertaining to village Chamyon (Part-III), Tehsil Sadar, District Bilaspur, H.P. In terms of the said award, the market value of the acquired land stands determined, classification wise from `94,553/- to `4,25,266/-. In the impugned land reference petition, the same stands re-
determined by the Reference Court @ `4,25,266/- per bigha, on uniform basis, for the reason that: (a) The 1 Whether reporters of the local papers may be allowed to see the judgment?::: Downloaded on - 15/04/2017 21:53:49 :::HCHP 2
observations made by the 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 to `4,25,266/-
of per bigha.
3. In terms of award No.59 of 2007, dated 01.02.2007, Collector Land Acquisition, determined the rt market value of the acquired land awarding different rates, classification/category wise, ranging from `94,553/- to `4,25,266/- per bigha.
4. In terms of the impugned award dated 27.03.2012, passed by District Judge, Bilaspur, H.P., in Reference Petition No.243 of 2008, titled as Lalman Versus Land Acquisition Collector, Kol Dam Project, Bilaspur 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 `4,25,266/- per bigha.
::: Downloaded on - 15/04/2017 21:53:49 :::HCHP 35. Certain facts are not in dispute: (i) 7-0 bighas (reduced from original area 9-12 bighas) of land came to be acquired in village Chamyon (Part-III), Tehsil Sadar, .
District Bilaspur, H.P., with the publication of notification in the official gazette on 03.04.2004, 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.59 of 2007, dated 01.02.2007, 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. 243 of 2008) 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 21:53:49 :::HCHP 4 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. rt 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.
9. Perusal of the Collector's award reveals that claimants themselves claimed compensation @ `80 lacs per bigha (`4 lacs per biswa). 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 21:53:49 :::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. Jagdish Thakur, 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. Significantly while responding to the reference 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 memo of appeal. In fact, as is evident from the reference petition, claimants had claimed rates @ `80 lacs per bigha (`4 lacs per biswa), on uniform basis.
13. In any event, Reference Court is duty bound to determine such market value, which is just, fair and reasonable.
::: Downloaded on - 15/04/2017 21:53:49 :::HCHP 614. 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 of Madhya Pradesh and another, (2013) 16 SCC 392 (para
34); Peerappa Hanmantha Harijan (Dead ) By Legal Representatives and others Versus State of Karnataka rt 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 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.
15. 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 ::: Downloaded on - 15/04/2017 21:53:49 :::HCHP 7 acquired land, at uniform rates, regardless of its categorization.
16. 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 of for the land situated near urban areas having potential for non-agricultural development.
17. In Union of India vs. Harinder Pal Singh and rt 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 classification and the category of land.
18. Further, in Nelson Fernades vs. Special Land Acquisition Officer 2007(9) SCC 447 while dealing with 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.
::: Downloaded on - 15/04/2017 21:53:49 :::HCHP 819. 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 of the Apex Court on 16.8.2004.
20. This judgment was subsequently referred to and relied upon by this Court in Executive Engineer & rt 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 awarded compensation on uniform rates.
21. It is a matter of fact that the entire land was put to public purpose. Dam stood constructed thereupon.
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.
::: Downloaded on - 15/04/2017 21:53:49 :::HCHP 922. The claimants examined two witnesses, namely, Lalman (PW.1) and Babu Ram (PW.2) and placed on record exemplar sale deeds (Ex.PA to Ex.PC).
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23. On the other hand, beneficiary examined five witnesses, namely, Ramesh Chand Sharma (RW.1), Smt. Renu Ranaut (RW.2), Rajinder Singh Chandel (RW.3), Yashwant Singh (RW.4) & Om Prakash (RW.5) and placed of on record statements (Ex.RW.3/A to Ex.RW.3/F and Ex.RW.5/A) of claimants in other land reference petition;
sale deeds (Ex.RA to Ex.RG); and exemplar award dated rt 31.05.2008, in reference petition No.29 of 2003, pertaining to village Nehar (Ex.RW.3/G) as also award dated 30.04.2009, in reference petition No.67 of 2005, pertaining to village Deula Chhamb (Ex.RW.3/H).
24. Reference Court, as is evident from discussions in paragraphs No.21 to 24 of the impugned award, discarded the sale deeds so produced by the claimants, for the reason that they pertain to small parcels of land. Also they were not with respect to the village in question. Insofar as exemplar sale deeds produced by the beneficiary is concerned, they stand discarded also for the very same reason. However, ::: Downloaded on - 15/04/2017 21:53:49 :::HCHP 10 keeping in view the fact that the entire land was utilized for public purpose by the beneficiary, the market value of the acquired land stood re-determined with the award of .
the highest rate, so determined by the Collector, irrespective of its classification and category.
25. Having heard learned counsel for the parties as also perused the record, reasoning adopted by the of Reference Court cannot be said to be perverse, erroneous or illegal. The exemplar sale deeds and awards passed by the Reference Court do not pertain to rt the village in question. None of the witnesses could establish similarity of the acquired land with that of the exemplar awards so referred to and relied upon by them.
26. Insofar as the sale deeds placed on record by the beneficiary are concerned, no doubt, in view of the statutory provisions (Section 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 ::: Downloaded on - 15/04/2017 21:53:49 :::HCHP 11 view of the matter, these sale transactions cannot be accounted for, for just determination of a fair market value of the acquired land.
.
27. Before this Court no material other than the Reference Court has considered was brought to notice.
Also no fresh material was placed before this Court in support of their respective claims, save and except of attention of this Court was invited to the judgment dated 13.12.2016, rendered in RFA No. 325 of 2010 wherein it is observed as under:-
rt "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) Similarity of the exemplar sale 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 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".
::: Downloaded on - 15/04/2017 21:53:49 :::HCHP 1228. The decision stands rendered in the given facts and circumstances of the said case and has no binding effect for the simple reason that in the present .
case, there is no independent evidence with regard to similarity of the acquired land vis-a-vis its use, nature and potential.
29. The Reference Court has taken note of the of similarity, productivity and potentiality.
30. Reliance by the beneficiary on the decision rendered by the Apex Court in Trishala Jain and another rt 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.
31. No other point urged or proved.
32. 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.
::: Downloaded on - 15/04/2017 21:53:49 :::HCHP 1333. Cross-objection, if any, shall also stand disposed of.
34. Quite evidently, in terms of award No.59 of .
2007, so passed by the Collector, several land reference petitions came to be clubbed and disposed of by the common impugned award dated 27.03.2012, passed by District Judge, Bilaspur, H.P., in Reference Petition No.243 of of 2008, titled as Lalman Versus The Land Acquisition Collector, Kol Dam Project, Bilaspur and another.
Common evidence was led by the parties in land rt Reference Petition No.243 of 2008. 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 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.
January 11, 2017 (Purohit/PK) ::: Downloaded on - 15/04/2017 21:53:49 :::HCHP