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2014 DIGILAW 1453 (HP)

State of Himachal Pradesh v. Hem Raj

2014-10-17

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. 1. Since all these appeals have been preferred against a common award, the same are taken up jointly for disposal. Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) was published in the Rajpatra on 31.12.1994 for acquiring land in village/Muhal Katipari, Sub-Tehsil Padhar, District Mandi, Himachal Pradesh which land was acquired for public purpose for construction and widening of National Highway-20. The Land Acquisition Collector passed the award under Section 11 on 3.1.1997 vide award No. 19. This award was based on the average five years value, Ext. RA according to which the compensation was awarded on the basis of the classification of the land. 2. The respondents/land owners feeling aggrieved and dissatisfied with the award passed by the Land Acquisition Collector claimed enhancement of the same by filing Reference Petitions under Section 18 of the Act. These petitions were allowed by learned District Judge, Mandi and he awarded compensation Rs. 2 lacs per bigha irrespective of the classification of the acquired land. It is this award which has been challenged in all these appeals before this Court. 3. It is alleged that the learned Court below has not appreciated the evidence in the right perspective and the learned Court below has based its award on sale deed, Ext.P-1, which is a manipulated one, in order to fetch maximum compensation of the land. This deed has come into existence between the parties who are related as uncle and nephew and the same was a sham transaction since nephew who appeared as PW-3 was working as a Draftsman in HP.PWD Department and was, therefore, well aware of the proposed acquisition. It is further contended that the award was required to be passed on the basis of the records maintained by the Government particularly average market price worked out on the basis of average value of five years, Ext.RA and was further required to be determined on the basis of classification of the land, rather than awarding a lump-sum compensation irrespective of the classification of the land. It is also argued that the matter qua damages was subject matter of jurisdiction of the Civil Court and was required to be governed by the law of limitation and Court Fee Act and, therefore, directions given by the learned Court below to the contrary were not sustainable in the eyes of law. 4. I have heard the learned counsel for the parties and gone through the records of the case. 5. In so far as the fixation of price of the land is concerned, it may be noticed that the petitioners in support of the claim had examined Shri Om Parkash as PW-1 who deposed that his land had been acquired for construction of National Highway No. 20 and had not been awarded compensation as per market value of the land. He further deposed that the value of the acquired land was about Rs. 15,000/- to Rs. 20,000/- per biswa. He admitted that widening of the road was done in the year 1990 and during acquisition proceedings, he had been called by the Collector. 6. PW-2, Shri Sandhalu is one of the vendors in sale deed, Ext.P-1. He deposed that he received sale consideration of Rs. 60,000/- at the time of acquisition of the sale deed for land measuring 0-4-04 bighas and the sale deed was executed prior to the acquisition of the land. He also stated that there are several Government offices near the subject matter of the land and the land of the other co-owners is also abutting the road. 7. PW-3 Mahender Singh is the purchaser of the land from PW-2 vide sale deed, Ext.P-1. He deposed that he had purchased this land for commercial purpose and also stated that the office of the Tehsildar was situated at a distance of 50 meters from his land and the other Government offices are also located there. 8. On the other hand, respondents examined Kushal Kumar as RW-1 who remained posted as Junior Engineer from 1993 to 1999 in Padhar Section and deposed that he had prepared the papers regarding widening of the road in the year 1990. He further deposed that notification under Section 4 of the Act was issued in the year 1994. The respondent also tendered in evidence average five years value, Ext.RA. 9. He further deposed that notification under Section 4 of the Act was issued in the year 1994. The respondent also tendered in evidence average five years value, Ext.RA. 9. The learned Court below while passing a detailed award has taken into consideration both the positive and negative factors required to be borne in mind while determining the cases under Law Acquisition Act. 10. While determining compensation in this case, it has to be borne in mind that acquisition in this case was for the purpose of widening of the National Highway which means that a Highway already existed and all these lands were those which were essentially abutting the Highway. Bearing in mind this fact, it would be seen that the only sale deed available on record is Ext.P-1, which has been duly approved in accordance with law and shows that an area of 0-4-04 bighas had been sold for a consideration of Rs. 60,000/- on 2.12.1994 and relates to the same Muhal Katipari. On the basis of the sale deed, it can be safely concluded that the value of one bigha of land was approximately Rs. 3 lacs. It has also been established on record that the acquired land was near Padhar which had now become a Sub Divisional Headquarter and at the relevant time, it was a Sub-Tehsil. Since the land was already abutting the National Highway which was sought to be widened by acquiring more land, the classification of the land could not be the basis upon which the award could have been passed. The learned District Judge has, therefore, rightly awarded compensation on a flat rate basis rather than determining the same on the basis of its classification. 11. Once the land was acquired for construction and widening of the existing road, the relevant factors of each of the plot like its location, size, shape and potentiality were similar and, therefore, these had to be assessed uniformly irrespective of its classification. While determining the value of land, the main factor is potentiality, which undisputedly was same in respect of all the plots of acquired land, as all of them could be used for establishment of commercial units, guest houses, residential houses etc. as these lands already abutted the existing Highway. This approach is not pragmatic but is also logical. While determining the value of land, the main factor is potentiality, which undisputedly was same in respect of all the plots of acquired land, as all of them could be used for establishment of commercial units, guest houses, residential houses etc. as these lands already abutted the existing Highway. This approach is not pragmatic but is also logical. In this regard, reliance can be placed on Land Acquisition Collector vs. Sukhdev Singh, 1995 (1) SLC 214, paragraph 11 of which reads as under: "11. While determining the market value of the acquired land on the basis of comparable sale transactions, the factors which are required to be kept in view have been laid down by Supreme Court in Chimanlal Hargovinddas vs. Special Land Acquisition Officer, Poona and Another, AIR 1988 SC 1652 :- (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 offer made by the Land Acquisition Officer at 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 reserve 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. (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 or the notification under section 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 section 4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market land 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) 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 be evaluated in terms of price variation as a prudent purchaser would do. (12) A balance-sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated in terms 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. Plus factors: 1. Smallness of size. 2. Proximity to a road. 3. Frontage on a road. 4. Nearness to developed area. 5. Regular shape. 6. Level vis-a-vis land under acquisition. 7. Special value for an owner on an adjoining property to whom it may have some very special advantage. (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....." The learned Judges of Supreme Court have further pointed out that valuation of these factors depends upon the facts of each case and there cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide." 12. In so far as the contention of the learned Advocate General that the market value of different plots of acquired land was required to be assessed differently and not at a flat rate is concerned, it has to be borne in mind that the purpose of acquisition was for construction and widening of National Highway-20. This aspect of the matter has already been dealt with by learned Division Bench of this Court in Land Acquisition Collector case (supra) wherein it has been held as under: 13. We do not find any substance in the submission of the learned Advocate General that the market value of different plots of acquired land was required to be assessed differently and not at flat rate, keeping in view the factors, such as, location, shape, size and potentiality etc. etc. of each plot of acquired land as he has failed to point out how these factors were different in respect of each plot of acquired land. Rather, we find that it is proved on record that all the plots of acquired land are situated adjacent to national highway and the relevant factors of each plot are similar keeping in view the purpose of construction of Barog by-pass road, for which the land was acquired. Rather, we find that it is proved on record that all the plots of acquired land are situated adjacent to national highway and the relevant factors of each plot are similar keeping in view the purpose of construction of Barog by-pass road, for which the land was acquired. The main factor is potentiality, which was undisputedly same in respect of all the plots of acquired land, as all of them could be used for the establishment of commercial units, guest houses and residential houses. 14. Our attention is drawn to the latest judgment of the Supreme Court in M/s. Printers House Pvt. Ltd. vs. Mst. Saiyadan (deceased) by LRs. and Others, AIR 1994 SC 1160 , which lays down that if there is evidence that the relevant factors, such as, location, shape, size, potentiality etc. etc. of one plot of acquired land widely differ from other plots of acquired land, then, the market value of each plot of acquired land has to be determined independently because 'differential factors" relating to different plots of acquired land greatly affect their value But in the appeals in hand, such evidence is lacking that there were variations in "differential factors" of each plot of acquired land. Therefore, we have no hesitation to approve the determination of the market value of the acquired land at a flat rate of Rs. 15,000 per Bigha by the District Judge. 15. We find that in M/s. Printers House Pvt. Ltd. vs. Mst. Saiyadan (Deceased) by LRs. and Others (supra), approving Comparable Sales Method of Valuation of Land as most favored method, the learned Judges of Supreme Court have reiterated that:- "...............the comparable sale must, firstly be genuine, secondly it must have taken place at a time proximate to the date of publication of the preliminary notification under section 4 (1) of the Act, thirdly the land sold under the sale must be similar to the acquired land, and fourthly the land sold under the sale must be in the vicinity of the acquired land. It has, therefore, to be noted that the location, size, shape, tenure, user or potentiality of land under comparable sale, if do not compare favourably with the acquired land, price fetched in comparable sale cannot furnish the 'price basis' for determining the market value of the acquired land. It has, therefore, to be noted that the location, size, shape, tenure, user or potentiality of land under comparable sale, if do not compare favourably with the acquired land, price fetched in comparable sale cannot furnish the 'price basis' for determining the market value of the acquired land. However, if any differing feature or factor in a land covered by comparable sale admits of adjustment in terms of money, depending on whether it is plus factor or minus factor, the market value of the acquired land is determined either by increasing its price or decreasing its price vis-a-vis the price fetched for land under comparable sale. What applies to comparable sale, equally applies to comparable award, if such award is relied upon as that furnishing a price basis for determination of the market value of the land, cannot be disputed." 13. The learned Court below has, therefore, rightly assessed the reasonable market value of the land at Rs. 2.5 lacs per bigha as against the value of Rs. 3 lacs on the basis of Ext. P-1 and then made 20% deduction as development charges and thereafter, worked out the rate as Rs. 2 lacs per bigha irrespective of the classification of the land which cannot be faulted with. 14. In so far as the allegation regarding sale deed, Ext.P-1 being a manipulated document is concerned, suffice it to say that no evidence whatsoever has been led by the respondents to prove this allegation. Certain suggestions have though been given to PW-3 regarding this document being manipulated one, however, PW-3 in his cross-examination had clearly stated that PW-2 was neither related to him nor he had paid price higher than the market value to the said person. It was further stated by him that he had obtained permission from the Government before purchasing the land in question. Moreover, the respondents while leading evidence examined RW-1 who did not even make a whisper regarding Ext.P-1 being a manipulated document. 15. In so far as the appellant taking exception to filing of Civil Suits before the learned Court below is concerned, that is a matter to be determined by those Courts where such proceedings have been initiated and it is always open to the appellants to contest those proceedings on all available grounds including the question of limitation as also inadequacy or otherwise of the court fee so affixed. There is no illegality or perversity in the awards passed by the learned Court below and the amount awarded at a flat rate of Rs. 2 lacs per bigha can in no manner be termed to be unduly high or excessive and is duly supported by sale deed, Ext.P-1. 16. For all the reasons stated above, I find no merit in these appeals and the same are accordingly dismissed leaving the parties to bear their own costs. Pending applications, if any, shall stand disposed of accordingly. Appeals dismissed.