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Himachal Pradesh High Court · body

2003 DIGILAW 342 (HP)

MANOHAR LAL v. STATE OF H. P.

2003-11-24

A.K.GOEL

body2003
JUDGMENT Arun Kumar Goel, J.: - By means of this common judgment, all the above said appeals are proposed to be disposed of. Reason being, that at the time of hearing of all these appeals, learned Counsel for the parties stated that date of notification under Section 4 of the Land Acquisition Act, 1894 (hereafter referred to as the Act1) is 27.1.1990, which was published in HP Rajpatra on 10.2.1990; except in case of the land which is subject-matter of RFA No. 50 of 1996, wherein this date is 10.2.1990. 2. It was further not disputed that in all these six groups of cases award of the Land Acquisition Collector, HP PWD, Solan is "dated 14.5.1992 vide Award No. 3 of 1992. However, RFA No. 172 of 1995, such award is dated 10.8.1992. On the basis of the awards in reference proceedings under Section 18 of the Act, all these appeals have been identified in six groups. 3. First group is of RFA No. 172 of 1995. In this case, award by the Court below is dated 30.9.1995. By means of impugned award the learned District Judge, Solan, has answered the award in negative and thus no enhancement was allowed. Second group is of the following cases : (a) RFA No. 46 of 1996; (b) RFA No. 47 of 1996; (c) RFA No. 48 of 1996; (d) RFA No. 49 of 1996; (e) RFA No. 50 of 1996; (f) RFA No. 51 of 1996; (g) RFA No. 53 of 1996. and (h) RFA No. 56 of 1996; 4. These were disposed of by the learned District Judge by a common award dated 17.7.1995. Evidence in these cases was recorded in reference, out of which RFA No. 51 of 1996 has arisen. Third group of the following cases : (a) RFA No. 116 of 1996; (b) RFA No. 117 of 1996; (c) RFA No. 118 of 1996; (d) RFA No. 131 of 1996; (e) RFA No. 133 of 1996; (f) RFA No. 141 of 1996; (g) RFA No. 28 of 1997; (h) RFA No. 29 of 1997; (i) RFA No. 31 of 1997; (j) RFA No. 53 of 1997; (k) RFA No. 68 of 1997; and (I) RFA No. 195 of 1997. 5. These were disposed of by the learned District Judge by a common award dated 9.4.1996. 5. These were disposed of by the learned District Judge by a common award dated 9.4.1996. Evidence of this group was recorded in the case out of which RFA No. 131 of 1996 has arisen. This appeal was dismissed looking to the amount awarded by way of enhancement 6. Fourth group is of two cases wherefrom RFAs 93 of 1997 and 94 of 1997. Evidence in both these cases has been separately recorded during reference proceedings under Section 18 of the Act. Fifth group is of the following cases: (a) RFA No. 136 of 1997; (b) RFA No. 141 of 1997; (c) RFA No. 142 of 1997; (d) RFA No. 143 of 1997; (e) RFA No. 176 of 1997; (f) RFA No. 203of 1997; (g) RFA No. 210 of 1997; (h) RFA No. 212 of 1997; and (i) RFA No. 222 of 1997. 7. In this group of cases evidence is recorded in the reference out of which RFA No. 212 of 1997. Date of the award of the learned Additional District Judge, in these cases is 8.1.1997. 8. Sixth group is against the award dated 3.1.1997 passed by the learned District Judge, out of which RFA No. 177 of 1997 has arisen. 9. As already noted, in all the cases while answering the reference petitions under Section 18 of the Act, except in RFA No. 172 of 1995, compensation has been assessed payable at Rs. 350/- per square yard plus solatium at the rate of 30% and interest, as per provisions of the Act. 10. fn RFA No. 172 of 1995, an application has been filed on behalf of the appellants to allow them to place on record certified copy of the award given by the learned District Judge, Solan in Land Reference No. 49-S/4 of 1993, dated 17.7.1995, in case titled as Liaq Ram and others v. State of Himachal Pradesh and another. 11. Now relevant facts necessary for deciding all these cases are being briefly referred to herein below: 12. Vide notification under Section 4 of the Act, the Government of H.P., intended to acquire the land situate in Mauza Basal, Tehsil and District Solan for a public purpose, namely construction of Chambaghat-Kandaghat road via Guggaghat Land of all the respondents together with the land of the appellants in RFA No. 172 of 1995, was intended to be acquired for the said public purpose. After initiating proceedings as envisaged under the Act awards were pronounced by the Land Acquisition Collector. Persons interested felt dissatisfied with the awarded compensation, as such they claimed references under Section 18 of the Act for determination of the compensation by the Court. And as already noted in all cases, except case out of which RFA No. 172 of 1995 has arisen, compensation was enhanced. In the latter case reference was answered in the negative, consequently no enhancement was allowed. 13; In the aforesaid background, State has filed the appeals. Some of the respondents have filed Cross Objections. As per appellant-State, compensation assessed is exorbitant and thus cannot be sustained. Thus they have prayed for allowing the appeals and reducing the compensation to what was allowed by the Land Acquisition Collector. 14. On the other hand, learned Counsel for the respondents-claimants, as well as for appellants in RFA No. 172 of 1995 submitted that compensation awarded is inadequate, which needs to be not only upheld, but appropriately enhanced also. In RFA No. 172 of 1995 it was urged that at least what has been awarded to other respondents in all other appeals may be allowed to the appellants. And as already noted Cross Objections have prayed for the enhancement of the compensation. 15. Another fact that needs to be noted before dealing with the submissions urged on behalf of the parties and on which the learned Counsel for the parties were not at variance is, that except in RFA No. 172 of 1995, award passed by the learned District Judge below dated 17.7.1995, which is subject matter of the second group of cases, has been made the basis for allowing enhancement of the compensation in third to sixth group of cases. Learned Counsel for the parties further stated that in all these cases, whether to uphold the impugned awards or not would depend upon the decision in the second group of above; Because in groups three to six above said, award of second group is made the basis. 16. As siich Except in RFA No. 172 of 1995, decision is being recorded in RF/^No. 51 of 1996 arising out of the land Reference Petition No. 49-S/4 of1993, L4aq Ram and others v. State of the H.P. and another. - -: 17. In this case basis for assessing compensation at the rate of Rs.350/- per sq. 16. As siich Except in RFA No. 172 of 1995, decision is being recorded in RF/^No. 51 of 1996 arising out of the land Reference Petition No. 49-S/4 of1993, L4aq Ram and others v. State of the H.P. and another. - -: 17. In this case basis for assessing compensation at the rate of Rs.350/- per sq. yard is two awards i.e. Exts,P.5.awards Both these awards are given by the then learned District Judge, SolanyExt.P.5 pertains to the land which was acquired at village Salogra for the public purpose, namely construction of Solan bye-pass road. So far Ext. P.6 is concerned, it pertains to the land which is situate in Mauza Kathed, Tehsil and District Solan. In the former compensation allowed was Rs.950/- per square yards, besides solatium and interest; whereas in the latter price assessed was at the rate of 500/- per square yard, besides solatium and interest etc. as admissible under law. 18. In the aforesaid background, learned Advocate General appearing on behalf of the appellant-State submitted that the learned Court below had fallen into error in placing reliance on Exts.P.5 and P.6, as both pertain to the land situate on the National Highway 22. Ext. P.5, per him was the price of the assessed situate in Salogra; whereas, Ext.P.6 pertains to the land situate on Solan bye-pass road, though touching on the same National Highway. Whereas land which is subject matter of these appeals is neither a Sate Highway, nor a National Highway as in case of Exts.P.5 and P.6. In fact it is a link road. Thus, compensation enhanced by means of impugned award cannot be sustained. While further assailing the award, Mr. Chandel urged that Salogra is at a distance of about 5 kilometres from the land which is the subject matter of these appeals. There was no similarity, or any other ground legally acceptable, so as to make those as comparable instances for allowing enhancement by means of impugned award. 19. While further stretching his submission Mr. Chandel pointed out that once Exts.P.5 and P.6 were excluded, then there is positive evidence of sale instances may be of smaller portions of the land which could be made basis for assessing compensation. According to him, these were Exts. P.2 to P.4. Ext. P.2 is a sale deed registered on 2.6.1992 whereby 99 sq. Chandel pointed out that once Exts.P.5 and P.6 were excluded, then there is positive evidence of sale instances may be of smaller portions of the land which could be made basis for assessing compensation. According to him, these were Exts. P.2 to P.4. Ext. P.2 is a sale deed registered on 2.6.1992 whereby 99 sq. metres of land was sold for Rs.50,000/-situate in Mauza Basal (Pati Kathed); Ext. P.3 is another sale deed dated 2.5.1988, whereby 44 sq. metres of land situate in Mauza Salogra was sold for Rs.20,000/- and Ext. P.4 is another sale deed dated 17.5.1988 whereby 38 sq. yards of land situate in Mauza Safongra District Solan was sold for Rs.20,000/-. 20. So far Exts.P.3 and P.4 .are concerned, Mr. Chandel pointed out that these cannot be looked into being wholly irrelevant as the land is situate on the National Highway and as per Ext. P.2, approximate price of the land comes to Rs.500/- per sq. metres in Mauza Basal, where land covered by all these appeals is situate. He also placed reliance in Ext. RA whereby land measuring 92.5 sq. metres was sold for Rs.7,000/- in September, 1989. There is another instance of sale of October, 1989 whereby 4020 sq. metres of land was sold for Rs.20,000/-. Both these sales pertain to village Basal, where the land under acquisition is situate and according to Mr. Chandel these are the good instances for determining the amount of compensation in all these appeals. 21. All these pleas have been controverted by the learned Senior Counsel S/Shri G.D. Verma and Bhupender Gupta as well as by Mr. Sanjeev Kuthiala, Advocate. According to them, compensation awarded is wholly inadequate. It is less than the market value of the land on the date or publication or notification under Section 4 of the Act. Per them, the lands which tare subject-matter or these appeals were situate in a developed area adjouring municipal limits of Solan town as well as industrial area, Chambaghat. In the area in question there is shopping complex, residential buildings of the VIPs There is post office, bank, school and patwarkhana, dispensary etc. Besides this, the industrial activity of mining etc. is also going on. In addition to these facts learned Chandel submitted that there are commercial buildings as well as residential houses of Senior IAS Officers in the close proximity of the land in question. Besides this, the industrial activity of mining etc. is also going on. In addition to these facts learned Chandel submitted that there are commercial buildings as well as residential houses of Senior IAS Officers in the close proximity of the land in question. Thus compensation needs to be enhanced. According to them, if not in all the cases at least in such cases wherein cross objections have been filed. 22. Reliance was placed by Mr. Chandel on decided cases with a view to support his submissions that sale instances of small piece of land cannot be made basis for assessing the compensation of large areas as in the present case. As according to him, keeping in view the location and topography of the land, for smaller parcels, number of customers will be bigger as compared to the larger parcels of land. So far this legal proposition is concerned, there can be hardly any dispute. Reason being that opending upon the need of the person concerned, number of purchasers for smaller parcel of land will be bigger. As such detailed reference is not being made to The Collector of Lakhimpur v. Bhuben Chandra Dutta, AIR 1971 SC 2015, Smi. Padma Uppal etc. v. State of Punjab and others, AIR 1977 SC 580, Basant Kumar and others v. Union of India and others, 1996(11) SCC 542 and Deva (Dead) through L.Rs. v. Sayan Kumar (Dead) by LRs., 2003(7) Scale 31, the cases on which reliance was placed by Mr. Chandel. 23. It is, a matter of common knowledge that some element of guess work is always there while assessing compensation of the land under acquisition as in the present cases. Reason being that compensation can never be assessed with certainty, and can be assessed only on the basis of sale instances etc. Not only this, but factors like the location of the land under acquisition and its development at present as also its potential of future development has also to be kept in view by the Courts in the matter of assessment of compensation. Nearness to bigger towns, accessibility to such towns, railway stations, Highways National/State are some other factors, which have also to be kept in view while assessing the compensation. 24. Nearness to bigger towns, accessibility to such towns, railway stations, Highways National/State are some other factors, which have also to be kept in view while assessing the compensation. 24. In addition to above, it is also a matter of common knowledge that with the growth of existing towns and in certain cases such growth having reached its optimum, possibility of areas situate in the near vicinity of such towns, like Solan in the present case are bound to develop in course of time. Therefore, rising trend in the prices of the land, keeping in view the potential of the development present as well as future can be judicially noticed and need to be taken into account by the Courts while assessing compensation under the Act. To cite an example it is also a well known fact that so far existing town of Shimla is concerned, it is saturated and there is hardly any scope of its further development. In the face of this situation, the helmets in the periphery as well as the surroundings of the main town are developing by leaps and bounds. Private and Government agencies have put up residential/commercial complexes in these areas. 25. Taking clue from the above, it cannot be said that Mauza Basal which is admittedly in close proximity, as well as in contiguity to the Municipal limits of Solan town, did not have the potential of its being developed by raising residential, commercial as well as Industrial Township in or around the land under acquisition are there. To this effect there is evidence on record, particularly statements of PW-1 Liaq Ram and PW-2 Mohan Lal. Both statements are suggestive that the area where the land was situate was upcoming and was in the process of developing. It is further indicative of the fact that it had enough potential for future development. 26. So far reliance placed on Exts. P.5 and P.6 by the learned Court below in coming to the conclusion that market value of the land under acquisition is Rs.350/- per sq. yard is concerned, I find no illegality in it. Vide Ext. P.5 Rs.950/- per sq. metres was allowed in the case of land which is subject matter of Salogra on National Highway 22. Likewise vide Ext. P.6 Rs.500/- per sq. yard is concerned, I find no illegality in it. Vide Ext. P.5 Rs.950/- per sq. metres was allowed in the case of land which is subject matter of Salogra on National Highway 22. Likewise vide Ext. P.6 Rs.500/- per sq. yard has been allowed for the land in Mauza Kathed that is also for the construction of road on the National Highway itself. After taking note of both these awards, (which incidentally have attained finality), learned Court below has further reduced the compensation as assessed by these awards. After allowing deduction and in my considered view rightly the learned Court below has assessed Rs.350/- per sq. yard as compensation to which no exception can be taken. In Ext. P.5, date of notification under Section 4 is 5.11.1988 having been published in HP Rajpatra on 17.6.1989. Whereas in Ext.P.6 date of notification under Section 4 is 25.5.1988 and having published in HP Rajpatra on 25.6.1988. In both these cases the date of publication of notification under Section 4 of the Act is prior to the date of notification under Section 4 in these appeals under consideration. Awards in Exts.P.5 and P.6, have become final, is not in dispute. 27. Looking to over all facts and circumstances of this case, I see no reason either on the basis of the evidence on record or otherwise to uphold the submissions of Mr. Chandel to all these appeals. 28. Another plea which was urged by Mr. Chandel is, that in some of these cases especially the groups 3 to 6, interest has been allowed to date prior to the date of notification under Section 4 of the Act. 29. This is not only illegal but is unwarranted by law. Though an attempt was made on behalf of the respondents by their learned Counsel to reject this plea. However for reasons to be recorded hereinafter there is force in the submission of Mr. Chandel to uphold the same. 30. Reason being that process of acquisition under the Act commences with the publication of notification under Section 4 of the Act. Under Section 23(1) thereof also, it is the relevant date for determining market value of the acquired property. Therefore, any amount payable under the provisions of the Act has to be on the date of publication of notification under Section 4 of tne Act n HP Rajpaptra. 31. Accordingly, while upholding this submission of Mr. Under Section 23(1) thereof also, it is the relevant date for determining market value of the acquired property. Therefore, any amount payable under the provisions of the Act has to be on the date of publication of notification under Section 4 of tne Act n HP Rajpaptra. 31. Accordingly, while upholding this submission of Mr. Chandel it is held that all these appeals where interest has been allowed prior to 10.2.1990 by the learned Court below, such part of the award will stand set aside. And it is further held, that interest payable on the awarded amount will be on and with effect from 10.2.1990 and any amount allowed prior this date is ordered to be set aside. For taking this view, reliance is being placed on Siddappa Vasappa Kauri and another v. Special Land Acquisition Officer and another, 2002(1) SCC 142, Special Tehsildar (LA), PWD Schemes v. M.A. Jabbar, 1995(2) SCC 142, and a Full Bench decision of this Court in Narotam Ram and others v. Collector Land Acquisition and another, Latest HLJ 2002 (HP) 1133 : 2003(2) Cur.L.J. (H.P.)(F.B.) 503. 32. So far matter relating to solatium is concerned, learned Counsel for the respondents-claimants stated that for all purposes it is a part and parcel of the compensation. Only distinction in case of solatium is that it is fixed at 30% of the compensation that is assessed. Thus according to them, all the respondents-claimants are entitled to interest on it. 33. This plea was controverted by Mr. Chandel, learned Advocate General. As according to him, unless appeal was specifically preferred in that behalf the respondents-claimants are not entitled to interest on solatium. However, for the reasons to be recorded hereinafter, plea urged by Mr. Chandel is not tenable in the eyes of law. In my considered view, solatium payable is in fact in the nature of compulsory acquisition charges. This percentage has been made payable to an unwilling person for parting with his property which is acquired by operation of law. Therefore, for all purposes it is an integral as well as inseparable part of the compensation. Besides this, entitlement of interest on solatium is no more res integra in view of constitution Bench of the Supreme Court reported in Sunder v. Union of India and others, 2001(7) SCC 211. Non-filing of the appeals will not disentitle the respondents-claimants to claim interest on solatium. Besides this, entitlement of interest on solatium is no more res integra in view of constitution Bench of the Supreme Court reported in Sunder v. Union of India and others, 2001(7) SCC 211. Non-filing of the appeals will not disentitle the respondents-claimants to claim interest on solatium. Another reason is that after allowing enhancement including solatium it is the duty of the Court in law to also order payment of interest. Its payment is not dependent on any act of litigants like respondents in these appeals, and appellants in RFA No. 172 of 1995. As such it is held that respondents-claimants would also be entitled to interest on solatium component on the awards passed by the learned Court below. Ordered accordingly. 34. No other point is urged. 35. In view of the aforesaid discussion the impugned awards in all these cases, except RFA No. 172 of 1995 are upheld with the following modifications partly allowing these appeals:- (a) That interest on the compensation will be payable on and with effect from 10.2.1990 and not to a date prior to it. Wherever it has been allowed to a date before 10.2.1990, it is held that the appellant-State is not liable for its payment. (b) As a result of this what follows is wherever it has been paid/allowed from a date prior to 10.2.1990, State is held entitled for its restitution by taking such recourse as is admissible under law. (c) Claimants are directed to pay back the same by or before 31.1.2004 by depositing the same with the Land Acquisition Collector, H.P PWD, Solan, failing which they shall be liable to pay interest on this amount from the date of its receipt by each one of them till the date of its deposit/payment at the rate of 12% per annum. (d) Cross objections are also dismissed. (e) Appellants are directed to recalculate the amount awarded in terms of this judgment by adding interest on the amount of compensation on (solatium to which the respondents-claimants are held entitled, as noted above. (f) Costs on the parties. 36. (d) Cross objections are also dismissed. (e) Appellants are directed to recalculate the amount awarded in terms of this judgment by adding interest on the amount of compensation on (solatium to which the respondents-claimants are held entitled, as noted above. (f) Costs on the parties. 36. So far RFA No. 172 of 1995 is concerned, CMP No. 185 of 1995 i.e. under Order 41 Rule 27 C. P. C. filed by the appellants deserves to be allowed for the simple reason that out of the same notification under Section 4 of the Act, and particularly on the same evidence learned Court below has allowed the enhancement of compensation. Not only this, but so far the award which is intended to be placed on record for being taken note of, as we as read in evidence in this appeal is concerned, it came into existence after decision of the award impugned in RFA No. 172 of 1995. Therefore, this application deserves to be allowed. Ordered accordingly. Let respondent-State lead evidence now in rebuttal to the aforesaid award attached with the application under Order 41 Rule 27 C.P.C. i.e. CMP No. 185 of 1995. For further order this RFA is ordered to be listed on 25th November, 2003. RFA No. 172 of 1995 is ordered to be de linked from rest of the appeals.