Himachal Pradesh High Court
State Of H.P. & Others vs Pankaj Kumar on 7 December, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
RFA No. 541 of 2012 a/w RFAs No.
.
542, 543, 544, 545 & 546 of 2012
Decided on : 7.12.2018
1. RFA No. 541 of 2012
State of H.P. & others. .....Appellants.
Versus
Pankaj Kumar ....Respondent.
2. RFA No. 542 of 2012
State of H.P. & others. .....Appellants.
Versus
Joginder Singh & others ....Respondents.
3. RFA No. 543 of 2012
State of H.P. & others. .....Appellants.
Versus
Vikram Singh & another ....Respondents.
4. RFA No. 544 of 2012
State of H.P. & others. .....Appellants.
Versus
Sant Ram (deceased) through LRs. ....Respondents.
5. RFA No. 545 of 2012
State of H.P. & others. .....Appellants.
Versus
Manoj Kumar & others ....Respondents.
6. RFA No. 546 of 2012
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State of H.P. & others. .....Appellants.
.
Versus
Partap Singh & others ....Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1
For the appellants: Mr. Hemant Vaid, Addl. A.G. with Mr.
Y.S. Thakur, Dy. A.G.
For the respondents: r Mr. Rupinder Singh, Advocate.
Sureshwar Thakur, J (oral)
During the course of arguments, the learned counsel appearing for the parties submit that the present lis, is squarely covered, by the decision rendered by this Court, in RFA No. 56 of 2007 titled as State of H.P. & others versus Keshav Ram , decided on 30 th July, 2014 , verdict stands extracted hereinbelow:-
"This appeal at the instance of the State is directed against the award dated 28.9.2006 passed by Additional District Judge (Presiding Officer, Fast Track Court), Solan, District Solan, H.P. in a Land Reference Case No. 5-FTC/4 of 2006/2005 under Section 18 read with Section 30 of the Land Acquisition Act, 1894.
2. The facts as necessary for the disposal of this case may be noticed. The Land Acquisition Collector processed the case for the acquisition of the land measuring 8 Bighas 3 Biswa out of which 1-18-3 bigha pertains to the present respondent on behalf of appellant 1 Whether reporters of the local papers may be allowed to see the judgment?
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No.2 situated in village Gaura for construction of 'Drinking .
Water Supply Scheme' to Solan Town from Giri River. The notification under Section 4 of the Land Acquisition Act, 1894 (for short 'Act') had been issued on 24.10.2003. The notification under Sections 6 and 7 of the Act was issued on 12.3.2004 and final award was announced by the Land Acquisition Collector on 31.3.2005 determining the value of the land @ ` 47,058/- per bigha for Katool and ` 6138/- per bigha for Banjar Kadeem depending upon the class of land. The compensation of the land pertaining to the respondent measuring 1-18-3 bigha comes to ` 89,723/- which was paid by the department to the respondent, through Land Acquisition Collector, Solan.
3. Aggrieved by this award, the respondent preferred an application under Section 18 of the Land Acquisition Act claiming the enhancement in the compensation of the land and case was registered as Case No. 5-FTC/4 of 06/05 in the Court of Ld. Additional District Judge, Solan (Presiding Officer, Fast Track Court), Solan.
The learned Additional District Judge clubbed 7 Nos. of land reference cases and decided the same by a common judgment vide award dated 28.9.2006. The case was finally heard and decided by the learned Additional District Judge, (Presiding Officer, Fast Track Court), Solan on 28.9.2006 and enhanced the market value of the land from `89,723/- to ` 32,19,682/- which is claimed to be not only illegal but also highly excessive whereby 35 times of the value assessed by the Land Acquisition Collector has been awarded. It is claimed that the estimated approved cost of the entire scheme including the compensation of land was assessed at ` 51.46 Crores wherein the components towards compensation for land was taken at ` 145.00 lacs including provision for approach roads etc. But ::: Downloaded on - 10/12/2018 22:57:08 :::HCHP ...4...
now the total compensation of the land alone comes to .
`1.30 Crores, which is highly excessive. It is further claimed that the Court below could not have placed reliance upon the value in the sale deeds of the adjoining lands which were having commercial value situated on the road side whereas the land acquired by the Department is Katool/Banjar Kadeem and far away from the town having no commercial value. That apart, it is situated in near the river having no access by road. It is further claimed that the Department is required to invest huge amount for development and cutting of the roads and therefore, 50% deduction for development ought to have been made by the Court below.
4. I have heard Mr. V.K.Verma, learned Additional Advocate General assisted by Ms. Parul Negi, Deputy Advocate General, for the appellants and Mr. Suneet Goel, learned counsel for the respondent and have also gone through the records carefully.
5. At the outset, it is necessary to bear in mind as to what would be the factors which are required to be taken into consideration while dealing with the problem of value of land under acquisition. Those factors has been succinctly summarized by the Hon'ble Supreme Court in Chimanlal Hargovinddas vs. Special Land Acquisition Officer, Poona and another (1988) 3 SCC 751 wherein it has been held as under:
"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 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 ::: Downloaded on - 10/12/2018 22:57:08 :::HCHP ...5...
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 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 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 Sections 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) ::: Downloaded on - 10/12/2018 22:57:08 :::HCHP ...6...
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 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 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 :-
Pl Minus
us factors
fa
ct
or
s
1. Smallness 1. Largeness of area.
of size.
2. Proximity 2. Situation in the
to a road. interior at a distance
from the road.
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3. Frontage 3. Narrow strip of land
on a road. with very small frontage
.
compared to depth.
4. Nearness 4. Lower level requiring
to the depressed portion to
developed be filled up.
area.
5. Regular 5. Remoteness from
shape. developed locality.
6. Level vis- 6. Some special
a-vis land disadvantageous factor
under which would deter a
acquisition. 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.::: Downloaded on - 10/12/2018 22:57:08 :::HCHP
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(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."
6. Mr. V.K.Verma, learned Additional Advocate General for the appellant would began his arguments by claiming that the learned Court below could not have relied upon Ex.PW-3/B on the basis of which it passed the impugned award as admittedly this deed had been executed in the year 2005 much after issuance of Section 4 notification in the year 2003. According to him, this being a post notification, sale could not have been relied upon. This contention is without merit, the Hon'ble Supreme Court in Chimanlal Hargovinddas case (supra) under point No.9 has clearly held that even post-notification instances can be taken into account provided that they are very proximate, genuine and the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects.
7. The Hon'ble Supreme Court in Mehta Ravindrarai Ajitrai (deceased by L.Rs) and others vs. State of Gujarat, AIR 1989 SC 2051 has categorically held that the post-
notification sales can also be relied upon as would be clear from the following observations:
"4............ The market value of a piece of property for purposes of S. 23 of the Land Acquisition Act is stated to be the price at which the property changes hands from a willing seller to a willing, but not too anxious a buyer, dealing at arms length. Prices fetched for similar lands with similar advantages and potentialities under bona fide transactions of sale at or about the time ::: Downloaded on - 10/12/2018 22:57:08 :::HCHP ...9...
of the preliminary notification are the usual and, .
indeed the best, evidences of market value. (See:
Administrator General of West Bengal v. Collector, Varanasi (1988) 2 SCC 150: (AIR 1988 SC 943) (at para 8).
5. Keeping these factors in mind, we feel that although the instance reflected in the sale deed (Exhibit 152) and the agreement for sale in connection with that land, pertains to a sale after the acquisition, it can be fairly regarded as reasonably proximate to the acquisition and, in the absence of any evidence to show that there was any speculative or sharp rise in the prices after the acquisition, the agreement of sell dated January, 21, 1957 must be regarded as furnishing some light on the market value of the land on the date of publication of Section 4 notification. However, certain factors have to be taken into account and appropriate deductions made from the rate disclosed in the said agreement to sell in estimating the market value of the land with which we are concerned at the date of the acquisition. One of these factors is that there seems to have been some rise in the price of land on account of the acquisition of the land in question before us for purposes of constructing an industrial estate. Another factor is that the land proposed to be purchased under the said agreement to sell was adjoining the land of the purchaser and the purchaser might have paid some extra amount for the convenience of getting the neighbouring land."::: Downloaded on - 10/12/2018 22:57:08 :::HCHP
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It would be seen that Ex.PW-3/B is a Sale Deed .
wherein the purchaser is a statutory authority i.e. HPSEB, which at the relevant time was the State Government undertaking, who has purchased the land measuring 2 - 3 bighas for consideration of ` 28,85,500/- and per biswa comes to ` 48,500/-, in year 2005.
The genuineness of this Sale Deed cannot be doubted. The location of the ladn in proximate to the land acquired and there is nothing on record to suggest that the purchaser (who as noticed above is statutory authority) was motivated to pay a higher price.
Thus, this Sale Deed could definitely have formed the basis for assessing the compensation.
8. Mr. V.K.Verma, learned Additional Advocate General would then contend that the Court has not taken into consideration that Ex.PW-3/B pertained to sale of land situate on the road side while the acquired land is far away from the road and is virtually in the river bed and classified as Katool/Banjar Badeem and, therefore, the same could not form the basis for awarding compensation.
9. I am afraid that this contention of learned Additional Advocate General cannot be accepted. PW-3 Keshav Ram, has got various documents including Ex.PW-3/B exhibited in his statement and nothing contrary has been elucidated from his cross-examination which may suggest that the acquired land is in any way less advantageous or having less potential than the land involved in Ex.PW-3/B. He has denied the suggestion that the present land is far away from the acquired land. He has gone to the extent of claiming that boundaries of village Rehar and village Gaura are common.
10. The claimants have further proved on record award Ex. PX which relates to the land acquired in Village Gaura for the purpose of Solan-Gaura-Chail Road. In the claimant's statement, it has been proved that this land is near to the acquired land and is of similar nature and quality. A sum of `21,093.75 paise or say ::: Downloaded on - 10/12/2018 22:57:08 :::HCHP ...11...
` 21,094/- per biswa has been awarded for the acquisition carried .
out in the year 1996. Therefore, there is nothing unusual or unreasonable whereby the learned Court below has awarded an amount of `41,632/- per biswa for acquisition carried out in year 2003 because over a period of seven years of time, the value of the land would have atleast doubled if not more. The State appears to be much influenced by the self estimation of the project whereby they worked out the land acquisition component to be `145.00 lacs which now swelled to ` 1.30 crores.
11. To be fair to the State, a reference may now be made to the sale deed Ex.R-1 upon which much reliance has been placed by learned Additional Advocate General. The perusal of Annexure R-1, shows that it a sale deed of 2 bighas 10 biswas of land which was sold for `15,000/- on 20.12.2002. But then this deed does not pertain to Village Gaura but relates to Village Rehar which is claimed to be adjoining to the village in question.
12. Now it is not a case where no sale transaction have taken place at Village Gaura during the relevant period because it is only then that the sale instance of the neighbouring land can be held to be relevant that too in case these lands are of same quality and potential. But since no evidence has been led on this aspect, no reliance whatsoever can be placed on Ex.R-1. Interestingly, the witness examined by the appellants when cross-
examined had stated that he had not even seen the land sold through Ex.R-1. He further admitted that village Rehar is at height whereas the acquired land was plain. The appellant has also tendered the copy of the mutation Ex.R-2 based upon Ex.R-1 and has also placed on record Ex.R-3, average price, which in turn, is based upon the sale deed Ex.R-1. Since no reliance can be placed on the sale deed Ex.R-1, therefore, Ex.R-2 and Ex.R-3 also become insignificant and inconsequential.
13. The learned Additional Advocate General would then argue that the price of small of plots cannot form basis for ::: Downloaded on - 10/12/2018 22:57:08 :::HCHP ...12...
determining the price of large areas. This plea again is totally .
misplaced for more than one reason. Firstly, the acquisition in this case is for construction of drinking water supply scheme. Therefore, it is not of a range chunk of land as claimed rather the acquisition is of different small tracts of land and therefore the principle "smaller size bigger price" would apply. In this view of the matter reliance placed by Mr. V.K. Verma, learned Additional Advocate General on the judgment of Smt. Kaushalya Devi Bogra and others etc. vs. Land Acquisition Officer, Aurangabad and another AIR 1984 SC 892 is misconceived to canvass that market value of larger properties or land cannot be based on instance of sales of smaller properties or land which principle as observed above does not apply to the fact situation obtaining in this case.
14. Lastly, Mr. Verma, learned Additional Advocate General would strenuously argue that atleast 50% deduction for development etc. ought to have been made. This plea is again without merit for the simple reason that there is not even a single whisper regarding this aspect of the case in the evidence led by the State. The appellant has examined its Assistant Engineer, Deepak Aggarwal as RW-1, who did not even touch or refer to this aspect of the case.
15. Thus, in view of my aforesaid findings and for the reasons recorded hereinabove, I find no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs."
2. Consequently, in view of the aforestated submissions' addressed herebefore also when appeal bearing RFA No. 56 of 2007, appertains to a subject matter holding similarity, vis-a-vis, the subject matter hereat, and, with the aforesaid appeal standing dismissed by this Court, thereupon the present appeals preferred ::: Downloaded on - 10/12/2018 22:57:08 :::HCHP ...13...
herebefore by the appellant(s) herein, are also, dismissed in the .
terms, of verdict (supra) recorded in RFA No. 56 of 2007. All pending applications stand disposed of accordingly.
7th December, 2018 (Sureshwar Thakur),
(kck) Judge.
r to
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