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2017 DIGILAW 960 (HP)

Laxmi Nand v. L. a. c

2017-08-24

DHARAM CHAND CHAUDHARY

body2017
JUDGMENT Dharam Chand Chaudhary, J. (Oral) - This judgment shall dispose of both the Appeals arising out of the same award dated 6.9.2003 passed by learned District Judge, Kinnaur, Civil Division at Rampur Bushahr, District Shimla, H.P. 2. The appellants (Hereinafter referred to as the Petitioners) are residents of Village Averi, P.O. Nogli, Tehsil Nirmand, District Kullu. The beneficiary, Union of India, the 2nd respondent has acquired the land belonging to them and others situated in village Averi through 1st respondent, the Collector Land Acquisition, District Kullu for defence purposes. Notification in this regard was issued under Sections 4 and 6 of the Land Acquisition Act and on completion of all codal formalities, the 1st respondent has made award No. 1/98 and thereby awarded the compensation @ Rs. 31,500/- per bigha. The completion with regard to fruit trees and non-fruit trees was assessed separately on the basis of Dr. Harbans Singh''s formula. A sum of Rs. 16,537/- was awarded as compensation towards fruit trees and Rs. 412/- qua non-fruit trees in favour of Laxmi Nand, whereas, to Durga Devi Rs. 7581/- towards fruit bearing trees and Rs. 9793/-towards non-fruit trees. The compensation with respect to the structures allegedly acquired was also stated to be inadequate. The Petitioners aggrieved by the award of compensation with respect to the acquired land, fruit trees, non-fruit trees and the structures allegedly in existence on the acquired land have preferred the references under Section 18 of the Act. The 1st respondent has referred the same to the Court of learned District Judge, Kinnaur at Rampur Bushahr. The Petition preferred by Laxmi Nand aforesaid was registered as Land Reference Petition No. 30/2000, whereas, that of Durga Devi Land Reference Petition No. 33/2000. The references made by the other right holders were also clubbed. The lead case was Land Reference Petition No. 30/2000 filed by Laxmi Nand aforesaid. Learned District Judge on the basis of pleadings of the parties has framed the following issues: 1. Whether the Collector Land Acquisition had inadequately assessed the market value of the land under acquisition? OPP. 2. Whether the Collector Land Acquisition had passed the award, dated 19.3.1998, after the stipulated period of 2 years and acquisition proceedings had lapsed'' If so, with what effect? OPP. 3. Relief. 3. On appraisal of the evidence produced by the parties on both sides, while answering issue No. 1, the compensation i.e. Rs. OPP. 2. Whether the Collector Land Acquisition had passed the award, dated 19.3.1998, after the stipulated period of 2 years and acquisition proceedings had lapsed'' If so, with what effect? OPP. 3. Relief. 3. On appraisal of the evidence produced by the parties on both sides, while answering issue No. 1, the compensation i.e. Rs. 31,500/- per bigha awarded by the 1st respondent was held to be inadequate, hence enhanced to Rs. 60,000/- per bigha, irrespective of the nature and classification of the acquired land. The claims regarding enhancement of compensation awarded qua fruit trees and non-fruit trees and also the structures allegedly in existence thereon were, however, rejected. Issue No. 2 was answered in negative i.e. against the Petitioners. The references were answered as per the findings recorded on issue No. 1. 4. Both the Petitioners aggrieved by the impugned award have questioned the legality and validity thereof on the grounds inter-alia that the reference Court below while deciding issue No. 1 has went wrong in assessing the market value of the acquired land @ Rs. 60,000/- per bigha at flat rates. The evidence suggesting that the acquired land was irrigated and ignored the evidence showing the market value of the acquired land as 2,62,500/- as assessed by the Patwari (PW-2), Department of Irrigation and Public health has vitiated the findings recorded by learned trial Court. The testimony of PW-2 that facility of irrigation was provided to the acquired land has erroneously been ignored. By way of application, CMP No. 828/2013 decided on 2.7.2013, the Petitioners were held entitled to raise all grounds including the award of interest as indicated in the application. 5. On behalf of the Petitioners, Mr. G.C. Gupta, learned Senior Advocate assisted by Ms. Meera Devi, Advocate has vehemently argued that the compensation should have not been awarded at flat rate and rather taking into consideration, the nature of the acquired land. Since the land in question, according to Mr. Gupta was ''Kayar Avval'', the market value thereof was proved to be Rs. 2,62,500/-, hence the compensation should have been enhanced accordingly. As regards the compensation towards fruit trees, according to Mr. Gupta, Harbans''s formula pertains to the year 1966 and in view of there being substantial increase in the price index up to 1996, when the land in question was acquired, the compensation on this score should have been enhanced appropriately. 2,62,500/-, hence the compensation should have been enhanced accordingly. As regards the compensation towards fruit trees, according to Mr. Gupta, Harbans''s formula pertains to the year 1966 and in view of there being substantial increase in the price index up to 1996, when the land in question was acquired, the compensation on this score should have been enhanced appropriately. He, however, has not pressed the increase in the compensation with respect to the structures, if any, in existence over the acquired land. Similarly, the claim qua benefit under the rehabilitation scheme, if any, to the Petitioners, it is left open to be agitated separately in appropriate proceedings strictly as per scheme. 6. Now if coming to the arguments addressed on behalf of the respondents, learned Assistant Solicitor General of India assisted by Mr. Pramod Thakur, learned Additional Advocate General has come forward with the version that learned District Judge has rightly re-determined the market value of the acquired land and awarded compensation @ Rs. 60,000/- per bigha i.e. at flat rates, irrespective of nature and classification of the acquired land. Also that, when no case is made out qua maintenance and up keep of the orchard belonging to the Petitioners and plantation made scientifically i.e. after taking proper space in terms of Dr. Harbans Singh''s formula, learned District Judge has rightly refused to enhance the compensation with respect to the fruit trees, which were in existence over the acquired land. The compensation, on this score, awarded by the Land Acquisition Collector, as such, is stated to be just and reasonable. 7. As pointed out, at the out set, it is only the assessment of compensation on two counts i.e. that of the acquired land and the fruit trees in existence thereon needs adjudication in the present lis. The Petitioners have claimed the compensation at enhanced rates i.e. Rs. 2,62,500/- per bigha on the basis of statement made by Mela Ram, Patwari I&PH Sub-Division, Nirmand, District Kullu, H.P. His testimony goes to show that the acquired land situated in village Averi is having facility of irrigation provided by the Lift Irrigation Scheme from river Satluj in the year 1980. Merely that the land is irrigated one, is not sufficient to conclude that its market value is Rs. 2,62,500/- per bigha. Merely that the land is irrigated one, is not sufficient to conclude that its market value is Rs. 2,62,500/- per bigha. Similarly, reliance qua this aspect of the matter has also been placed on the statement of Lal Singh (PW-4) and Bala Ram (PW-5). PW-4 belongs to village Barawali, Teshil Rampur Bushahr, whereas, PW-5 to village Ralu, Tehsil Nirmand, District Kullu. While in the witness box, they have only said that their land was also acquired for the same public purpose @ Rs. 1,65,000/- per bigha. However, nothing as to how much was the distance of their land from that of the acquired land, in which mohal the same was situated, its potentiality and classification has come in their statement. On the other hand, PW-4 in his crossexamination has admitted that highest market value of the land in village Averi was not Rs. 1,65,000/- per bigha. Being so, it is difficult to place reliance on their testimony and to arrive at a conclusion that the market value of the acquired land was Rs. 1,65,000/-per bigha. Petitioners Laxmi Nand while in the witness box as PW-7 and Durga Devi as PW-8 have also stated that land of Layak Ram, Lal Singh, Agya Ram, Bala Nand etc, was also acquired and the compensation paid to them @ Rs. 1,65,000/- per bigha. However, their testimony is hardly of any help to their case for the reasons recorded hereinabove and also for want of documentary proof to show that the land of aforesaid persons was adjoining to that of the Petitioners having same potentiality and classification etc. the reference Court below, as such, has rightly concluded that the Petitioners have failed to prove the market value of the acquired land @ Rs. 2,62,500/- per bigha and for that matter even Rs. 1,65,000/- per bigha also. As a matter of fact, best piece of evidence to determine the market value of the acquired land are the sale instances of same mohal/chak or nearby vicinity having taken place proximate to the date of issuance of Notification under Section 4 of the Act. 2,62,500/- per bigha and for that matter even Rs. 1,65,000/- per bigha also. As a matter of fact, best piece of evidence to determine the market value of the acquired land are the sale instances of same mohal/chak or nearby vicinity having taken place proximate to the date of issuance of Notification under Section 4 of the Act. Previous award of the Court are again important piece of evidence in this regard, however, the Petitioners have failed to produce any such evidence and as such, learned reference Court below was absolutely justified in taking into consideration the previous awards passed by it qua acquisition of land for the same public purpose and under same Notification. No doubt, particulars of such award(s) considered by learned reference Court below find mentioned in the impugned award, however, the award being the record of the Court; hence the observations therein should be believed to be true and correct. Therefore, when learned reference Court below has itself made the award and thereby awarded Rs. 60,000/- per bigha as compensation with respect to the land acquired for the same public and under the same Notification, irrespective of its nature and classification, the award of compensation at such rates to the Petitioners herein cannot be said to be illegal or contrary to the record of the case. Otherwise also, it is well settled at this stage that when the land is acquired for the same public purpose, its classification looses significance and the compensation can be awarded at flat rates, irrespective of classification and category of the acquired land. I am drawing support in this regard from the judgment of this Court in Dadu Ram vs. Land Acquisition Collector and others, RFA No. 246 of 2008 along-with its connected matters, decided on 29th March, 2016, which reads as follows: "18. Now, if coming to the 2nd point, it is seen that learned reference Court has categorized the land in two categories i.e. ''Majrua'' and ''Gair Majrua'', of course on the request of the Petitioners, as is apparent from the perusal of award announced by the Land Acquisition Collector. In view of the evidence available on record, prior to inception of Kol Dam Project, no developmental activities had taken place there by that time. Meaning thereby that the entire area was in the process of being developed. The land was acquired for the construction of project. In view of the evidence available on record, prior to inception of Kol Dam Project, no developmental activities had taken place there by that time. Meaning thereby that the entire area was in the process of being developed. The land was acquired for the construction of project. Therefore, taking into consideration, the purpose for which the land was acquired, the same should not have been classified ''Majrua'' or ''Gair Majrua'' for the reason that the land was acquired for the construction of project and as such, the classification of the acquired land completely looses significance. I am drawing support in this regard from the judgment of this Court in Executive Engineer and another vs. Dila Ram, Latest HLJ, (2008) (HP) 1007 , the relevant portion of the judgment reads as follows: "12. The Collector has awarded compensation of the acquired land as per classification of the land. The learned District Judge has enhanced the compensation of the acquired land as per classification. One of the questions in the above Appeals is whether awarding of compensation as per classification of the land is proper or not. The purpose of the acquisition in the present case is for construction of road and for that purpose classification completely looses significance. The acquired land is to be used/developed as a single unit for the construction of road. In H.P. Housing Board vs. Ram Lal and others, 2003 (3) Shim.L.C 64 the acquisition was made for construction of housing board colony and compensation was assessed as per classification by the Collector. In the High Court the persons interested limited their claim for enhancement of compensation to Rs. 400/- per square meter irrespective of classification. On those facts, a learned single Judge of this court has held that when the land is being developed for constructing housing colony, the classification completely looses significance and awarded compensation on the flat rate of Rs. 200/- per square meter for the entire land irrespective of classification or nearness to the road. In Union of India vs. Harinder Pal Singh and others 2005 (12) SCC 564 , the Hon''ble Supreme Court has approved the view of the High Court assessing the market value of the lands under acquisition in the five villages at uniform rate of Rs. In Union of India vs. Harinder Pal Singh and others 2005 (12) SCC 564 , the Hon''ble Supreme Court has approved the view of the High Court assessing the market value of the lands under acquisition in the five villages at uniform rate of Rs. 40,000/- per acre, irrespective of their nature or quality and whether the same was situated nearer to the road or at some distance therefrom. In the present case also, the acquired land is to be used/developed for the construction of the road as a single unit and, therefore, classification of the land looses significance. In these circumstances, the persons interested are entitled to compensation at the rate of Rs. 6,000/- per biswa of Rs. 1,20,000/- per bigha of the acquired land irrespective of classification, which is more than the market value assessed by learned District Judge." 8. In view of the discussion here in above, the Petitioners have failed to persuade this Court to form an opinion that the compensation should have been awarded to them @ Rs. 2,62,500/- per bigha, taking into consideration the classification of the land and not Rs. 60,000/- per bigha at flat rates. The findings recorded by learned reference Court below, in this behalf, therefore, calls for no interference. 9. Now if coming to the claim of the Petitioners for enhancement of compensation towards fruit trees. It is worth mentioning that the Collector Land Acquisition has assessed the compensation payable to Laxmi Nand, one of the Petitioners towards fruit bearing trees as Rs. 16,537/-, whereas, to Durga Devi Rs. 7581/-. The same has been assessed on the basis of Dr. Harbans Singh''s formula. There is no denial to such averments in the reference Petition. Dr. Harbans Singh''s formula admittedly came into being in the year 1966. The Petitioners have claimed increase on the basis of price index being maintained by the Labour Bureau, Government of India. The increase as per averments in the Petition is 400 times up to 1996 when the land was acquired. The respondents in reply to para 5 of the Petition have not disputed such increase in the price index, however, according to them, the compensation was assessed on the basis of estimate received from the Department of Horticulture. The increase as per averments in the Petition is 400 times up to 1996 when the land was acquired. The respondents in reply to para 5 of the Petition have not disputed such increase in the price index, however, according to them, the compensation was assessed on the basis of estimate received from the Department of Horticulture. Be that as it may, however, the fact remains that the Petitioners were entitled to appropriate suitable increase in the compensation assessed by the Land Acquisition Collector towards fruit trees for the reason that Harbans Singh''s formula pertains to the year 1966, whereas, the land was acquired much much after that i.e. in the year 1996. A Division Bench of this Court in Rajinder Singh vs. Agro Industrial Packaging India Limited, (2002) 3 SLC 222 though has approved three time increase in compensation towards fruit trees which was awarded by the reference Court, however, refused to further increase the same for want of evidence such as plantation of fruit plants scientifically as prescribed in Harbans Singh''s formula as well as qua up keep and maintenance of the orchard by the claimants. Be it stated that in an earlier judgment by a Division Bench in Union of India and others vs. Khazana Ram and others, (1998) 1 SLC 479 , five times increase in the compensation already awarded was approved, keeping in view the increase in price index. A Single Bench of this Court in Raj Pal Chauhan vs. State of H.P., (2007) Suppl. Current Law Journal (HP) 109 : 2007 (3) SLC 530 has held that keeping in view the increase in the price index from the year 1966 till 1986 at 478 percent by reducing 111 percent, the price index in the year 1966 out of it has considered the increase i.e. 331 percent, in round figure three times as appropriate and enhanced the damages payable to the plaintiffs in that case accordingly. This Court, however, deems it appropriate to place reliance on the latest judgment rendered by a Division Bench of this Court in Rajinder Singh''s case supra. Learned reference Court below keeping in view the increase in the price index, which as per averments in the reference Petition was 400 percent should have increased the compensation awarded to the Petitioners towards fruit trees by four times because the averments to this effect in para 5 of this Appeal remained un-controverted. Learned reference Court below keeping in view the increase in the price index, which as per averments in the reference Petition was 400 percent should have increased the compensation awarded to the Petitioners towards fruit trees by four times because the averments to this effect in para 5 of this Appeal remained un-controverted. Therefore, Laxmi Nand appellant-Petitioner is entitled to award of (Rs. 16,537 X 4 = Rs. 66,148), whereas, the appellant-Petitioner Durga Devi (Rs. 7581 X 4 = Rs. 30,324) as compensation towards fruit trees, which were in existence over the acquired land. They are also entitled to all statutory benefits including interest @ 9% from the date of Notification under Section 4 i.e. 16.11.1994 for the period of one year and thereafter @ 15% till the deposit/payment of enhanced compensation to them. They are entitled to interest payable in terms of Section 23(1-A) of the Act again from the date of issuance of Notification. 10. The award under challenge is modified to this extent only. Both the Appeals stand disposed of accordingly. Pending application(s), shall also stand disposed of.