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[Cites 15, Cited by 12]

Himachal Pradesh High Court

Jeet Ram vs State Of Himachal Pradesh & Others on 24 April, 2023

Author: Sushil Kukreja

Bench: Sushil Kukreja

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No. 54 of 2016 & RFA No. .

                               234 of 2017





                               Reserved on:      03.04.2023
                               Date of decision: 24.04.2023

________________________________________________

1. RFA No. 54 of 2016:

Jeet Ram.
.....Appellant.
Versus State of Himachal Pradesh & others.
......Respondents.

2. RFA No. 234 of 2017:

State of Himachal Pradesh & others.
.....Appellants.
Versus Jeet Ram.
......Respondent.
________________________________________________ Coram The Hon'ble Mr. Justice Sushil Kukreja, Judge.
1
Whether approved for reporting?
1. RFA No. 54 of 2016:
For the appellant: Mr. J.L. Bhardwaj, Sr. Advocate, with Mr. Sanjay Bhardwaj, Advocate.
For the respondents: Mr. B.N. Sharma, Mr. Raj Kumar Negi, Additional Advocates General, with Mr. R.P. Singh and Ms. Avni Kochhar, Deputy Advocates General.
2. RFA No. 234 of 2017:
For the appellants: Mr. B.N. Sharma, Mr. Raj Kumar Negi, Additional Advocates General, with Mr. 1 Whether reporters of Local Papers may be allowed to see the judgment?
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R.P. Singh and Ms. Avni Kochhar, Deputy Advocates General.
.
For the respondent: Mr. J.L. Bhardwaj, Sr. Advocate, with Mr. Sanjay Bhardwaj, Advocate.
Sushil Kukreja, Judge.
Since both these appeals arise out of the common award dated 16.10.2015, passed by learned District Judge, Bilaspur, H.P., in Land Reference No. 33/4 of 2013, decided on 16.10.2015, the same are disposed of by this common judgment.
2. The land measuring 08-14 bighas, situated in Village Sehlon, Tehsil Sadar, District Bilaspur, H.P. of claimant- Shri Jeet Ram, appellant in RFA No. 54 of 2016 (hereinafter referred to as "the claimant"), was acquired by the Government of Himachal Pradesh under Section 4 of the Land Acquisition Act, 1894 (for short 'the Act') for the construction of Kuhal-Katal road. The Land Acquisition Collector, vide Award No. 15 of 2011, dated 09.12.2011, awarded the market price ranging from Rs.1,54,284 to Rs.7,97,134/- per bigha, depending upon the classification of the land.
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3. Being aggrieved, the claimant (appellant in RFA No. 54 of 2016 herein), preferred Land Reference Petition .

No. 33/4 of 2013, under Section 18 of the Act, for enhancement of compensation, before the learned District Judge, Bilaspur, H.P.. The Reference Court, vide its award dated16.10.2015, allowed the petition and re-determined the market value at the rate of Rs.10,28,571/- per bigha,

4. to irrespective of the classification of the land.

Being dissatisfied, the State of Himachal Pradesh preferred RFA No. 234 of 2017, before this Court, with a prayer to set-aside the impugned award passed by the learned Reference Court and on the other other hand, the claimant preferred RFA No. 54 of 2016, before this Court, seeking modification to the extent of assessing the damages of the land from the date of dispossession, i.e., January, 2005, till actual payment or in the alternative payment of interest @ 12% per annum, w.e.f. January, 2005, till payment of the compensation, as damages on the entire compensation amount.

5. The learned Additional Advocate General has contended that Reference Court has fallen into error by enhancing the market value of the acquired land at the ::: Downloaded on - 25/04/2023 20:39:26 :::CIS 4 uniform date of Rs.10,28,571/- per bigha for all categories of the acquired land. He has further contended that the .

deduction was bound to be made from the market value.

Conversely, it is contended on behalf of the claimant that since the land of the claimant was acquired for the same purpose, as such, the Reference Court has rightly awarded the compensation for the acquired land at the uniform rate, regardless of its categorization. It is further contended that the purpose of acquisition of the land was construction of a rural road, so no deduction was permissible.

6. The claimant, by filing RFA No. 54 of 2016, contended that the possession of his land was taken in the year 2005, the land was utilized for the construction of a road and the notification under Section 4 of the Act was issued in the year 2009, thus, he is entitled for compensation for the period between 2005 to 2009, as he was dispossessed from his land.

7. I have heard the learned Senior Counsel for the claimant, learned Additional Advocate General and gone through the records carefully.

8. Admittedly, the land in question was acquired by the State of Himachal Pradesh for construction of 'Kuhal-

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Katal Road', which is a rural road. The total land of the claimant, which was acquired, was 08-14 bighas. It is not in .

dispute that the land of the claimant was acquired for the same purpose, that is, for construction of Kuhal-Katal road.

It is well settled principle of law that if entire land is acquired for the same purpose, then the claimants are entitled for compensation for the acquired land at the uniform rate, regardless of its categorization. Reference in this regard can be made to General Manager, NHPC & another vs. Rattan Dass & others, 2018 (2) SLC 739, relevant paras whereof, for the sake of ready reference are extracted hereunder:

"8. At the outset, it may be observed that it is 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 acquired land, at uniform rates, regardless of its categorization. This aspect of the case has been considered by a coordinate Bench of this Court in RFA No. 282 of 2010 titled Suresh Kumar and others vs. Collector Land Acquisition, NHPC, decided on 22.10.2016 alongwith connected matters, wherein it was observed as under:
"26. 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 acquired land, at uniform rates, regardless of its categorization. 27. The apex Court in Haridwar Development Authority vs. Raghubir Singh & others, (2010) 11 SCC 581 has upheld the award of compensation on uniform rates.
28. In Union of India vs. Harinder Pal Singh and others 2005(12) SCC 564, while determining ::: Downloaded on - 25/04/2023 20:39:26 :::CIS 6 the compensation for acquisition of land pertaining to five different villages, the apex Court uniformly awarded a sum of Rs.40,000/- per acre, irrespective of the classification and the category of land. 29. 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.
30. 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 the Apex r Court on 16.8.2004. 31. This judgment was subsequently referred to and relied upon by this Court in Executive Engineer & 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."

9. In the instant case, admittedly, the land of the claimant was acquired for the same purpose, that is for construction of Kuhal-Katal road, as such the claimant is entitled for compensation for the entire acquired land at the uniform rate, regardless of its categorization, as such the learned Reference Court had rightly enhanced the market value of the acquired land at the uniform rate of Rs.10,28,571/- per bigha for all categories of the acquired land.

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10. This Court in number of judgments has consistently taken a view that the deduction will not be .

permissible where the purpose of acquisition of land is the construction of road, rail track or any other purpose relatable to the public at large, without any component of profit or loss.

11. Reference can be made to 2014 (3) SLC 1356 titled as G.M. Northern Railway vs. Gulzar Singh & others as under:-

"10.
r to Even previously in judgments reported, in 1997 (2) SLC 229 and 1998(2) All India Land Acquisition Act LACC (1) SC, it has been mandated that when the purpose of acquisition is common, the award of compensation at a uniform rate for different classification/categories of land, is, tenable. Hence, it can be forthrightly concluded, that, the award of a uniform rate of compensation by the learned Additional District Judge Una for different lands bearing different classifications/categories, is, not legally infirm, especially when on acquisition they acquire a uniform potentiality.
11. The learned counsel appearing for the appellant has concerted, to also espouse before this Court, that even though, reliance upon Ex. PW1/C by the learned Court below, is not misplaced, in as much, as it fulfilled the relevant enshrined legal parameter for its invocation/applicability, in as much, as (i) it being proximate to the land subjected to acquisition, as also (ii) its execution being contemporaneous to the issuance of the notification under Section 4 of the Land Acquisition Act. Nonetheless, he has canvassed that (i) given the largeness or expanse and immensity/immenseness of size of the land subjected to acquisition vis- à-vis the area of the land sold/ comprised in Ex.PW 1/C, the market value of the land comprised in Ex.PW1/C could not have been, as a whole applied to the entire land subjected to the acquisition, unless, deductions for developmental costs as warranted and mandated by the decisions ::: Downloaded on - 25/04/2023 20:39:26 :::CIS 8 relied upon by him had been made/accorded. Since, the learned Additional District Judge, Una omitted to give/make deductions from the total compensation arrived at/worked out on the basis of the value of the land sold/comprised .
in Ex.PW1/C, whereas, he was enjoined to do so, he has committed a grave legal error necessitating interference by this Court.
12. While proceeding to gauge the sinew of the above contention canvassed before this Court, it is necessary to bear in mind that the judgments cited in support of the above view espoused by the learned counsel for the appellant, are distinguishable, vis-à-vis, the facts at hand, hence, in the humble view of this Court, not reliable as (a) all the judgments relied upon by the learned counsel for the appellant, concert to marshal the view, of, deductions from the lump sum compensation assessed qua a large tract of land on the score of market value of a r small/minimal piece of land being made. In other words, the emphasis in the aforesaid citations, is that, for the market value of small a tract of land to be comprising an admissible parameter, for, on its strength working out the compensation for a large tract of land, it is, imperative that deductions towards development costs is made. However, distinguishably in the citations aforesaid, the acquisition was made for the development of sites for allotment for housing purpose or for construction of a housing colony or the purpose of acquisition had an inherent profiteering motive. Therefore, given the purpose for which the land was acquired, in, the cases relied upon by the learned counsel for the appellant, deductions were enjoined to be imperative or necessary, as, the entity for whom the land was brought under acquisition, would be entailed/obliged, to, make the land fit for the purpose for which it was acquired, in as much, as, such an entity concomitantly being driven to incur exorbitant expenses, towards its development for rendering it fit for use. As such, given the magnified increase in the scale of economies or given the ultimate manifold increase, in, the scale of economies or such incurring of exorbitant expenses on development, hence, acquiring the capacity to proportionately reduce their profit, as such, rendering the project for which the land was acquired financially viable, or, to obviate the losses accruing from the steep rates of compensation as may be awarded that deductions were ::: Downloaded on - 25/04/2023 20:39:26 :::CIS 9 permitted. In other words, deduction from compensation mandated to not render the venture and the purpose for which the land was acquired, in the aforesaid citations relied upon by the learned counsel for the appellant, to be financially un-whole some, .
as well as, unviable. More so, when the land is acquired for State holdings, building/housing agency(ies) or the agencies carrying out and engaged in profiteering work. However, in contra distinction, to the facts of the judgments, as relied upon by the learned counsel for the appellant, in the instant case, the land has been subjected to acquisition, for the purpose of construction of a railway track. In the appellant engaging itself in the construction of a railway track, it has assumed the role of doing so, as, a welfare measure and not as a profiteering measure. The railway track would continue to be owned by the appellant, in distinction to the facts of the judgments relied upon by the learned counsel for the appellant, where the agency for whom the land was subjected to acquisition, would on developing the land, sell it further or gain profit. (b) The appellant has omitted to adduce cogent evidence on record displaying the fact that each of the land holder, whose land was subjected to acquisition was holding a vast expanse of land. Omission to adduce into evidence such proof demonstrative of each of the land holders, whose land was subjected to acquisition, owing a wide expanse or a large sized holding, vis-à-vis, the sale transaction comprised in Ex. PW1/C, a firm conclusion can be formed, that, the size of the holding or the size of the land of the each of the land holders, whose land was subjected to acquisition was more or less equal to or not disproportionately larger in size to the area of the land comprised in Ex.PW1/C. Hence, there was no jurisdictional error, on the part of the learned Additional District Judge, Una, in not affording deduction, given the smallness in size of the land comprised, in, Ex.PW1/C, vis-à-vis, the lands of each of the individual land owners, whose land was subjected to acquisition. Besides, it has also not been cogently proved by the appellant that any part of the land owned by each of the land owners and subjected to acquisition did not bear potentiality nor would have commanded a market value, lesser than the value earned by the expanse of land comprised in Ex.PW1/C. It appears, that, given the proximity of the acquired land, as deposed by PW-4 Gulzar Singh and PW3 Gurbachan Singh, to educational institution, ::: Downloaded on - 25/04/2023 20:39:26 :::CIS 10 temple and abadi of the villagers it enjoyed or commanded immense market value. Therefore, when each parcel of the land subjected to acquisition bore a market value, equivalent to the land subjected to acquisition, hence, there was, no, legal error .
committed by the learned Additional District Judge in relying upon for the market value depicted, in, Ex.PW1/C and applying it to the entire tracts of the land subjected to acquisition even, when it was smaller in size vis-à-vis the land subjected to the acquisition."

12. Similar, reiteration can be found in 2017 (Suppl.) SLC 263 titled Jaswant Singh &others vs. State of H.P. & others: r "21.

Plea of the appellants on this issue is misconceived. In present case, acquisition is not for the purpose of developing a Housing Colony, setting up a commercial unit or any other purpose of like nature which may have resulted development of area on the cost of the State. In the judgments relied upon by the appellants, the deductions were allowed for two purposes i.e. (a) deduction for providing development infrastructure and (b) deduction for development expenditure/expenses and these deduction have been explained by the Apex Court in case titled Chandrashekar (dead) by LRs and others Vs. Land Acquisition Officer, reported in (2012)1 SCC 390, which is as under:-

"19. Based on the precedents on the issue referred to above it is seen, that as the legal proposition on the point crystallized, this Court divided the quantum of deductions (to be made from the market value determined on the basis of the developed exemplar transaction) on account of development into two components.
19.1 Firstly, space/area which would have to be left out, for providing indispensable amenities like formation of roads and adjoining pavements, laying of sewers and rain/flood water drains, overhead water tanks and water lines, water and effluent treatment plants, electricity sub stations, electricity lines and street lights, telecommunication towers etc. Besides the aforesaid, land has also to be kept apart for parks, gardens and playgrounds.
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Additionally, development includes provision of civic amenities like educational institutions, dispensaries and hospitals, police stations, petrol pumps etc. This "first component", may conveniently be referred to as deductions for keeping aside .
area/space for providing developmental infrastructure.
19.2 Secondly, deduction has to be made for the expenditure/expense which is likely to be incurred in providing and raising the infrastructure and civic amenities referred to above, including costs for levelling hillocks and filling up low lying lands and ditches, plotting out smaller plots and the like. This "second component" may conveniently be referred to as deductions for developmental expenditure /expense.
20. It is essential to earmark appropriate deductions, out of the market value of an exemplar land, for each of the two components referred to above. This would r be the first step towards balancing the differential factors. This would pave the way for determining the market value of the undeveloped acquired land on the basis of market value of the developed exemplar land.

22. 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.

23. In the present case, acquisition is for the purpose of establishing substation and construction of road and therefore, deduction price of development on the basis of either of the aforesaid two components is not applicable.

24. Deduction can be made for various reasons and in present case deduction of 1/3 value has been made as discussed above to the value of land available on record in agreements Ex. PW-4/A, Ex. PW-4/B and Ex. PW-4/C pertaining to the same village for the same period but with additional right of access to land from remaining land.

25. Learned District Judge has awarded Rs.39,000/- per biswa, which is nearer to Rs.40,000/-. Further, land owners have not preferred any appeal or cross-objection for enhancement of the amount of ::: Downloaded on - 25/04/2023 20:39:26 :::CIS 12 compensation. Therefore, as discussed above, no interference in the rate determined by learned District Judge, i.e.Rs.39,000/- per biswa is warranted."

13. Thus, the contention of learned Additional .

Advocate General cannot be upheld for the reasons firstly, that no deduction will be permissible keeping in view the purpose of acquisition involved in the instant appeals, secondly, every inch of acquired land was put to the same use for which it was acquired and lastly, the area of land in exemplar sale deed and the acquired holdings of each claimant did not have contrasting dimensions.

14. Now, the next question, which arises for consideration before this Court is as to whether the claimant was also entitled to be compensated for the period between actual utilization of land and issuance of notification under Section 4 of the Land Acquisition Act. Learned District Judge, on fact, has held that though the road was constructed in the year 2005 but the claimant was not entitled to any compensation as he had voluntarily asked the State to construct the road. The view so taken by learned Reference court cannot be countenanced for the reason that after construction of road, the claimant had approached this Court by way of writ petitions and thereafter his land was acquired, ::: Downloaded on - 25/04/2023 20:39:26 :::CIS 13 vide notification, issued in the year 2009. Once the acquisition was there, the question of voluntariness of the .

claimant to surrender the land becomes redundant.

15. In Madishetti Bala Ramul (dead) by LRs vs. Land Acquisition Officer (2007) 9 SCC 650 Hon'ble Supreme Court allowed the interest @ 15% per annum on the market value assessed by the Reference Court on the ground that the land was utilized for public purpose without acquisition and payment of compensation for considerable long period. The relevant extract from the aforesaid judgment is quoted for reference as under:

"9. The short question which, therefore, arises for consideration is as to whether Section 25 of the Act will have any application in the fact of the present case. Two notifications were issued separately. The second notification was issued as the first notification did not survive. Valuation of the market rate for the acquired land, thus, was required to be determined on the basis of the notification dated 23.12.1991. The earlier notification lost its force. If the notification issued on 16.03.1979 is taken into consideration for all purposes, the subsequent award awarding market value of the land @ Rs. 65/- per square yard cannot be sustained. As the said market value has been determined having regard to the notification issued on 23.12.1991, possession taken over by Respondent in respect of 3 acres 5 guntas of land, pursuant to the said notification dated 16.03.1979 was in the eye of law, therefore, illegal. The High Court evidently directed grant of additional market value @ 12% per annum on the enhanced market value from the date of the publication of the notification dated 23.12.1991 as also interest thereupon from the said date instead and place of ::: Downloaded on - 25/04/2023 20:39:26 :::CIS 14 18.05.1979. We generally agree therewith.
15. The Land Acquisition Officer took possession of the land on the basis of a notification which did not survive. Respondent could not have continued to .
hold possession of land despite abatement of the proceeding under the 1984 Act. It was directed to be decided by the High Court upon a reference made by the Collector in terms of Section 30 of the Act. The State, therefore, itself realized that its stand in regard to the ownership of 3 acres and 5 guntas of land was not correct. It, therefore, had to issue another notification having regard to the provisions contained in the Land Acquisition (Amendment) Act, 1984.
Whereas the High Court may be correct in interpreting the question of law in view of the decision of this Court, but the same would not mean that Appellants would not get anything for being remaining out of possession from 1979 to 1991.
20. In the peculiar facts and circumstances of the case, although the proper course for us would have to remand the matter back to the Collector to determine the amount of compensation to which the Appellants would be entitled for being remained out of possession since 1979, we are of the opinion that the interest of justice would be met if this appeal is disposed of with a direction that additional interest @ 15% per annum on the amount awarded in terms of award dated 02.01.1999 for the period 16.03.1979 till 22.12.1991, should be granted, which, in our opinion, would meet the ends of justice."

16. Before proceeding further, it is imperative to note here that in a batch of similar appeals (RFAs No. 305 to 308 and 40 to 42 of 2016), arising out of a common award, passed by the learned Reference Court, a Co-ordinate Bench of this Court, after exhaustively discussing the law on the issue, disposed of the appeals and held as under:

"21. In the facts of given cases also learned reference court had arrived at a specific finding of fact in respect of utilization of land for construction of road by the State in the year 2005, which has not been assailed ::: Downloaded on - 25/04/2023 20:39:26 :::CIS 15 before this Court. Even otherwise, such finding of fact is ascertainable from material on record. Admittedly, the notification under Section 4 of the Land Acquisition Act was issued on 3.12.2009. The claimants are, therefore, held entitled to additional interest .
by way of damages, at the rate of 15% per annum for the period between 2005, the date when the appellants were dispossessed till 3.12.2009, the date of Notification under Section 4(1) of the Act.
Needless to say, that this compensation will be on the basis of land value fixed by the Reference Court. The amount as above, shall be calculated and deposited before the Reference Court within a period of three months from today."

17. Here in the instant cases also, admittedly, the claimant was divested from his land in the year 2005 and the notification of acquisition under Section 4 of the Act was issued on 03.12.2009, therefore, in view of the judgment (supra) of the Co-ordinate Bench of this Court, wherein the Co-ordinate Bench also took note of the decision rendered in Balwan Singh & others vs. Land Acquisition Collector & another, (2016) 13 SCC 412, wherein the same view was reiterated by the Hon'ble Supreme Court and direction was issued to the acquiring authority to award additional interest by way of damages from the date when the respondents-

claimants were dispossessed till the date of notification under Section 4 of the Act. Relevant paras of Balwan Singh's judgment (supra) for the sake of ready reference are extracted hereunder:

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"1. The short issue arising for consideration in this appeal is whether the appellants are entitled to interest for the period from the date of dispossession to the date of Notification under Section 4(1) of the Land Acquisition Act, 1894 (For short 'the Act'). That issue is no more res .
integra. In R.L. Jain Vs. DDA (2004) 4 SCC 79 at para 18, this Court has taken the view that the land owner is not entitled to interest under the Act. However, it has been clarified that the land owner will be entitled to get rent or damages for use and occupation for the period the Government retained possession of the property.
2. Noticing the above position, this Court in Madishetti Bala Ramul Vs. Land Acquisition Officer (2007) 9 SCC 650, took the view that it may not be proper to remand the matter to the Collector to determine the amount of compensation to which the appellants therein would be entitled for the period during which they remained out of possession and hence, in the interest of justice, this Court directed that additional interest at the rate of 15% per annum r on the amount awarded by the Land Acquisition Collector, shall be paid for the period between the date of dispossession and the date of Notification under Section 4(1) of the Act.
3. The said view was followed by this Court in Tahera Khatoon Vs. Land Acquisition Officer (2014) 13 SCC 613.
4. Following the above view taken by this Court, these appeals are disposed of directing the respondents to award additional interest by way of damages, at the rate of 15% per annum for the period between 1.7.1984, the date when the appellants were dispossessed till 2.9.1993, the date of Notification under Section 4(1) of the Act.

Needless to say, that this compensation will be on the basis of land value fixed by the Reference Court. The amount as above, shall be calculated and deposited before the Reference Court within a period of three months from today."

18. In view of what has been discussed hereinabove and also the law on the subject and the judgment rendered by the Co-ordinate Bench of this Court in similar matters, this Court is of the view that since the land in question was acquired by the State of Himachal Pradesh for construction of a rural road in the year 2005, however, notification qua ::: Downloaded on - 25/04/2023 20:39:26 :::CIS 17 acquisition under Section 4 of the Act was issued on 03.12.2009, therefore, the claimant is held entitled to .

additional interest, as damages, @ 12% per annum for the period between 2005 (the date when the claimant was actually dispossessed from the land in question) till 03.12.2009 (the date of issuance of notification of acquisition of the land in question, under Section 4(1) of the Act), as

19.

r to prayed by the claimant, in RFA No. 54 of 2016.

Accordingly, the appeal of the State (RFA No. 234 of 2017) is dismissed and appeal of the claimant-Jeet Ram (RFA No. 54 of 2016) is allowed.

20. It goes without saying that the compensation will be calculated only on the basis of the land value, as fixed by the learned Reference Court. The State, after calculating the amount of compensation, as above, shall deposit the same before the learned Reference Court within three months from today.

21. Pending application(s), if any, shall also stand(s) disposed of.

( Sushil Kukreja ) Judge 24th April, 2023 (virender) ::: Downloaded on - 25/04/2023 20:39:26 :::CIS