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2016 DIGILAW 716 (HP)

State of Himachal Pradesh v. Prabhu Devi

2016-05-07

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Appellants herein are the State of Himachal Pradesh and the Public Works department as well as Land Acquisition Collector who were respondents in the reference petition. The challenge herein is to the award dated 29.4.2011 passed by learned District Judge, Shimla in Reference Petition No. 9-S/4 of 2007 whereby learned District Judge has re-determined the market value of the acquired land @ Rs. 5,32,416/- per bigha (752 square metres) irrespective of its kind and nature and enhanced the compensation together with all statutory benefits. 2. The award has been challenged on the grounds, inter-alia, that the same is on higher side and the compensation @ 80,000/- per bigha awarded by the Collector Land Acquisition is just and reasonable. 3. The land of the respondent herein (petitioner-claimant in the reference Cot below) measuring 1022.30 square metres, bearing Khasra Nos. 141/1 and 142/1 situate in revenue estate Chalaunti (Sanjauli) was acquired by the appellants-State for the construction of Sanjauli-Dhalli Bye pass road. Notification under Section 4 of the Land Acquisition Act (hereinafter referred to as ‘the Act’ in short) was issued on 18.11.2003. The same was published in Rajpatra and also in two leading News papers. Besides public notice was also published in the locality on 22.1.2004. The Collector after complying with all codel formalities has determined the market value of the acquired land @ Rs. 80,000/- per bigha and announced award No. 26/04 dated 8.12.2004. 4. The respondent, however, was not satisfied with the determination of the market value of the acquired land @ Rs. 80,000/- per bigha, therefore, made reference under Section 18 of the Act on the ground that the acquired land situate adjoining to Sanjauli a fast developed area having all modern facilities including road, telephone, water, electricity, educational institutes and health centers is having great commercial potentiality. The market value of the acquired land was, therefore, claimed @ Rs. 20,00,000/- per bigha at the time of issuance of notification under Section 4 of the Act. The reference so made was forwarded to the Court of learned District Judge, Shimla and was registered as Reference Petition No. 9-S/4 of 2007. The appellants-State herein while admitting that the acquired land belongs to the respondent-petitioner have denied the contention to the contrary that its market value was Rs. 20,00,000/- per bigha at the relevant time. The reference so made was forwarded to the Court of learned District Judge, Shimla and was registered as Reference Petition No. 9-S/4 of 2007. The appellants-State herein while admitting that the acquired land belongs to the respondent-petitioner have denied the contention to the contrary that its market value was Rs. 20,00,000/- per bigha at the relevant time. The market value of the land determined by the Collector is stated to be just, reasonable and adequate. On the pleadings of the parties, the following issues were framed: (i) Whether the valuation of the land in question has been made incorrectly by the Collector, if so, what is the correct valuation thereof? …OPP (ii) Relief. 5. The parties on both sides have produced the evidence in support of their respective claims. Learned Reference Court below on hearing the parties and on appreciation of the evidence available on record, has re-determined the market value of the acquired land @ Rs. 5,32,416/- as against Rs. 80,000/- determined by the Land Acquisition Collector. It is this award under challenge in this appeal on the grounds, inter-alia, that village Chalaunti is a rural area having very low population. The sale instance of small piece of land Ext.PW1/A could have not been relied upon. The increase in the market value of the land is many folds hence the award is not legally sustainable. 6. I have heard Mr. Virender Verma, learned Additional Advocate General representing the appellants-State and Mr. G.D. Verma, learned Senior Advocate on behalf of the respondent-petitioner. Mr. Verma during the course of arguments while placing reliance on a recent judgment in RFA No. 42 of 2009, titled Dr. Saif Ali Khan Versus State of Himachal Pradesh and another and the cross Appeal RFA No. 293 of 2009, State of H.P. and another Versus Dr. Saif Ali Khan, delivered on 23.3.2016 has submitted that the point in issue is squarely covered against the appellant-State thereby. 7. The perusal of the judgment ibid reveals that the dispute in that case was also regarding the determination of the market value of the land situate in the same village i.e. Chalaunti and acquired for the same public purpose i.e. construction of Sanjauli Dhalli bye pass road. The land in that case was acquired by the same notification and the market value thereof was also assessed as Rs. 80,000/- per bigha. The land in that case was acquired by the same notification and the market value thereof was also assessed as Rs. 80,000/- per bigha. Not only this but in that case also, the reference Court has enhanced the compensation from Rs. 80,000/- per bigha to Rs. 5,32,416/- like in the case in hand. Mr. Verma, therefore, is absolutely justified in submitting that the point in issue is squarely covered by the judgment supra. Nothing could be brought to the notice of this Court during the course of arguments on behalf of the appellant-State as to why the judgment in Dr. Saif Ali Khan’s case supra is not applicable in the given facts and circumstances of this case. The Co-ordinate Bench in Dr. Saif Ali Khan’s case supra has determined the market value of the acquired land @ Rs. 9,05,107/- per bigha in modification of the award passed by the Land Acquisition Collector and has enhanced the compensation accordingly. The appeal RFA No. 293 of 2009 preferred by the State was dismissed. Therefore, applying the ratio of the judgment supra to the given facts and circumstances of this case, this appeal being devoid of any merits is hereby dismissed. 8. Now, if coming to the arguments addressed on behalf of the respondent-petitioner that she is also entitled to the compensation at the enhanced rate i.e. Rs. 9,05,107/- per bigha, no doubt, she has not filed any appeal in this Court for further enhancement of the amount of compensation. However, applying the ratio of the judgment of this Court in LAC Solan & another Versus Bhoop Ram and its connected matters, 1997(2) Sim, L.C. 229, even if she has not preferred the appeal, she is entitled to the award of compensation at the enhanced rates. I am drawing support in this regard from the following texts of this judgment:- “Though other claimants have not filed any appeal against the award, yet in exercise of our powers under Order 41, Rule 33 of the Civil Procedure Code, we order that they will also be awarded compensation for their acquired land at this rate. In the result, the appeals filed by the Land Acquisition Collector and the State of Himachal Pradesh are dismissed and impugned award is modified accordingly. In the result, the appeals filed by the Land Acquisition Collector and the State of Himachal Pradesh are dismissed and impugned award is modified accordingly. We may give reasons for invoking extra-ordinary powers under Order 41, Rule 33 of the Civil Procedure Code to award uniform rate of Rs.40 per square metre or Rs.30,000/- per Bigha to all the respondents-claimants in these appeals. Though we have dismissed the appeals of the Land Acquisition Collector and the State of Himachal Pradesh, yet we have allowed the appeal of one of the respondents-claimants, namely, Bhoop Ram in RFA No. 9 of 1984 to the limited extent that he will be entitled to compensation for his acquired land at uniform rate of Rs 40 per square metre or Rs 30,000/- per Bigha, as a result of which the impugned award is modified only in respect of the acquired land of respondent-claimant Bhoop Ram but in respect of other respondents-claimants by the same award different rates of market price are awarded according to classification of their acquired land, which creates an anomalous position. Therefore, in order to give just and fair compensation to all the respondents-claimants whose lands have been acquired for the same purpose and by the same notification under Section 4 of the Act, it is in the interest of justice and fair play to award compensation at the same rate which has been awarded to one of them, namely, Bhoop Ram, without their filing appeal or cross-objections. From the above pronouncements of the Supreme Court it is clear that Order 41, Rule 33 confers wide and unlimited jurisdiction on Courts to pass a decree in favour of a party who has not preferred any appeal, there are however certain well defined principles in accordance with which that jurisdiction should be exercised. Normally a party who is aggrieved by a decree should file appeal or cross-objections against it within a period of limitation, but there are well recognized exceptions to this rule. Some of them are : (i) Where as a result of interference in the appeal it becomes necessary to readjust the rights of other parties; (ii) where the question is one to settle mutual rights and obligations between the same parties and (iii) when relief rayed for is single and indivisible but is claimed against the number of defendants.” 9. Some of them are : (i) Where as a result of interference in the appeal it becomes necessary to readjust the rights of other parties; (ii) where the question is one to settle mutual rights and obligations between the same parties and (iii) when relief rayed for is single and indivisible but is claimed against the number of defendants.” 9. Therefore, in the light of the legal as well as factual aspect of the matter, as discussed hereinabove, the respondent-petitioner is entitled to the enhanced amount of compensation, however, in case the judgment in Bhoop Ram’s case supra has attained finality. 10. The appeal stands accordingly disposed of. Pending applications, if any, also stands disposed of.