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Himachal Pradesh High Court · body

2018 DIGILAW 1534 (HP)

LAC Parvati Hydro Electric Project v. Jeet Ram

2018-08-21

VIVEK SINGH THAKUR

body2018
JUDGMENT : VIVEK SINGH THAKUR, J. 1. These appeals and cross objections, arising out of awards dated 12.5.2011, passed by the Reference Court in the land reference petitions No. 84, 85, 86, 87, 88, 89, 90, 91 of 2008, are being decided together as common question of law and facts are involved in these cases. 2. Land acquisition proceedings for acquiring the land and structures standing thereon for the purpose of constructing Parvati Hydro Electric Project were initiated by issuing notification dated 22.3.2003 under Section 4 of the Land Acquisition Act (in short 'the Act’) and after completing the proceedings, vide award Nos. 19 and 20 dated 6.1.2005 announced by the Land Acquisition Collector under Section 11 of the Act compensation for lands only was awarded. Thereafter on the basis of assessment carried on by the Land Acquisition Collector supplementary awards Nos. 21-A and 22-A dated 28.2.2007 were announced qua structures standing on the land acquired vide awards No. 19 and 20 supra. 3. It is undisputed fact that during exercise being undertaken by the Land Acquisition Collector for evaluation of structures, the assessment of the value of the structures was assessed by HPPWD through its Executive Engineer, which was objected by claimants by filing the application before Deputy Commissioner, Kullu who, in response thereto, had directed the District Rural Development Authority (DRDA) to carry out the assessment of the structures in question. In pursuant to the said directions, DRDA, through its Assistant Engineer (SDO) had carried out the assessment of the structures in question. Pending evaluation by Land Acquisition Collector, re-assessment of extra cost of these structures on prevailing market rates on the date of notification under Section 4 of the Act was also carried out through Executive Engineer PWD and after considering the assessment as well as re-assessment, Land Acquisition Collector had awarded the compensation to the owners/claimants. 4. Aggrieved by the compensation awarded by the Land Acquisition Collector, owners/claimants had preferred the land reference petitions before the Reference Court. These reference petitions were consolidated in two sets by the Reference Court and evidence was led only in two main lead reference petitions which is identical in nature. 4. Aggrieved by the compensation awarded by the Land Acquisition Collector, owners/claimants had preferred the land reference petitions before the Reference Court. These reference petitions were consolidated in two sets by the Reference Court and evidence was led only in two main lead reference petitions which is identical in nature. In reference petition (s) preferred against Award No. 21-A, claimants have examined PW1 Dinesh Sain Draftsman DRDA, PW2 Tilak Raj Assistant Engineer DRDA, PW3 Ridhi Singh District Revenue Accountant from DC Office and two claimants PW4 Jeet Ram (Claimant in RFA No. 155 of 2012, reference petition No. 82 of 2008) and PW5 Yagya Dev (claimant in RFA No. 158 of 2012, reference petition No. 87 of 2008) and claimants have also placed reliance on evaluation reports Ext.PA, Ext.PB, Ext.PC, Ext.PD and Ext.PE by the same on record in evidence through statements of their counsel and also placed reliance on assessment report Ext.PW1/B, whereas in reference petition (s) preferred against award No. 22-A, witnesses PW1, PW2 and PW3 are the same persons with identical deposition and claimant PW4 Lal Chand (claimant in RFA No. 156 of 2012 and reference petition No. 85 of 2008) has been examined and reliance has also been placed on evaluation reports Ext.PA, Ext.PB and Ext.PC by placing the same on record. Evidence in both set of reference petitions is identical in nature. 5. The beneficiary has not chosen to lead any evidence except tendering the valuation reports Ext.DA and Ext.DB i.e. assessment carried out by X-En PWD in evidence. 6. Learned counsel for the appellant has canvassed that learned Additional District Judge, Fast Track Court, Kullu has committed mistake in awarding 25% enhancement to the valuation of the structures assessed by Executive Engineer PWD as the said enhancement is without any basis and ignoring the fact that Land Acquisition Collector, at the time of passing the supplementary award, had already assessed the compensation after making the addition of 10% extra cost on the market rate prevailing at the time of issuance of notification under Section 4 of the Act. 7. 7. Learned counsel for the claimants/cross objectors submit that though learned Additional District Judge has awarded 25% enhancement on the value of structures assessed by X-En PWD on the ground that value of the houses has been assessed by PWD after making deduction on the actual assessment made by Executive Engineer and also that as the construction cost has increased after 2000, no extra cost has been added in the total amount assessed by PWD, however, there is no basis restricting the said enhancement at the rate of 25% particularly when another official and reliable assessment is on record and therefore award of compensation by the Land Acquisition Collector on the basis of assessment of Executive Engineer (PWD) cannot be maintained for the evidence led by claimants before the Reference Court and further that there is difference in the value of structures assessed by PWD and DRDA and no evidence in support of assessment carried out by Executive Engineer (PWD) has been led by the beneficiary, whereas claimants have examined PW1 Dinesh Saini Draftsman, PW2 Tilak Raj as well as PW3 Ridhi Singh District Revenue Accountant for substantiating the valuation carried out by DRDA, and thus amount of compensation cannot be based on the assessment carried out by Executive Engineer (PWD), but the award deserves to be modified by granting compensation on the basis of assessment carried out by DRDA. 8. It is further convassed that one of nine claimants, namely Kiran Rekha Sood, whose structure was also acquired along with present claimants, had also assailed award announced by Land Acquisition Collector, wherein learned Additional District Judge, Fast Track Court Kullu in reference petition No. 93 of 2008 vide award dated 6.8.2010 had awarded the compensation on the basis of assessment carried out by DRDA and said award has been upheld by this High Court in RFA No. 415 of 2010 and as the land as well as structures belonging to Kiran Rekha Sood were acquired along with present claimants in pursuant to the one and the same notification dated 23.3.2003 issued under Section 4 of the Act, situated in one and the same area for the same purpose, the claimants are also entitled for identical method of valuation for awarding compensation for their structures. 9. 9. For awarding compensation on the analogy of Kiran Rekha Sood’s case, claimants have also relied upon pronouncement of the Apex Court passed in Narendra and others vs. State of Uttar Pradesh reported in (2017)9 SCC 426 specially referring following observations:- “6. The matter can be looked into from another angle as well, viz., in the light of the spirit contained in Section28A of the Act. This provision reads as under: “28-A Re-determination of the amount of compensation on the basis of the award of the Court- (1) Wherein an award under this Part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section II, the persons interested in all the other land covered by the same notification under Section 4, sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under Section 18, by written application to the Collector within three months from the date of the award of the court require that the amount of compensation payable to them may be redetermined on the basis of the amount of compensation awarded by the court......” 7. It transpires from the bare reading of the aforesaid provision that even in the absence of exemplars and other evidence, higher compensation can be allowed for others whose land was acquired under the same Notification. 8. The purpose and objective behind the aforesaid provision is salutary in nature. It is kept in mind that those land owners who are agriculturist in most of the cases, and whose land is acquired for public purpose should get fair compensation. Once a particular rate of compensation is judicially determined, which becomes a fair compensation, benefit thereof is to be given even to those who could not approach the court. It is with this aim the aforesaid provision is incorporated by the Legislature. Once we keep the aforesaid purpose in mind, the mere fact that the compensation which was claimed by some of the villagers was at lesser rate than the compensation which is ultimately determined to be fair compensation, should not be a ground to deny such persons appropriate and fair compensation on the ground that they claimed compensation at a lesser rate. In such cases, strict rule of pleadings are not be made applicable and rendering substantial justice to the parties has to be the paramount consideration. It is to be kept in mind that in the matter of compulsory acquisition of lands by the Government, the villagers whose land gets acquired are not willing parties. It was not their voluntary act to sell of their land. They were compelled to give the land to the State for public purpose. For this purpose, the consideration which is to be paid to them is also not of their choice. On the contrary, as per the scheme of the Act, the rate at which compensation should be paid to the persons divested of their land is determined by the Land Acquisition Collector. Scheme further provides that his determination is subject to judicial scrutiny in the form of reference to the District Judge and appeal to the High Court etc. In order to ensure that the land owners are given proper compensation, the Act provides for 'fair compensation’. Once such a fair compensation is determined judicially, all land owners whose land was taken away by the same Notification should become the beneficiary thereof. Not only it is an aspect of good governance, failing to do so would also amount to discrimination by giving different treatment to the persons though identically situated. On technical grounds, like the one adopted by the High Court in the impugned judgment, this fair treatment cannot be denied to them. 9. No doubt the judicial system that prevails is based on adversarial form of adjudication. At the same time, recognising the demerits and limitations of adversarial litigation, elements of social context adjudication are brought into the decision making process, particularly, when it comes to administering justice to the marginalised section of the society. 10. History demonstrates that various forms of conflict resolution have been institutionalized from time to time. Presently, in almost all civil societies, disputes are resolved through courts, though the judicial system may be different in different jurisdictions. Traditionally, our justice delivery system is adversarial in nature. Of late, capabilities and method of this adversarial justice system are questioned and a feeling of disillusionment and frustration is witnessed among the people. After all, what is the purpose of having a judicial mechanism – it is to advance justice. Traditionally, our justice delivery system is adversarial in nature. Of late, capabilities and method of this adversarial justice system are questioned and a feeling of disillusionment and frustration is witnessed among the people. After all, what is the purpose of having a judicial mechanism – it is to advance justice. Warren Burger once said: “The obligation of the legal profession is… to serve as healers of human conflict… (we) should provide mechanisms that can produce an acceptable result in shortest possible time, with the least possible expense and with a minimum of stress on the participants. That is what justice is all about.” 11. Prof. (Dr.) N.R. Madhava Menon explains the meaning and contour of social justice adjudication as the application of equality jurisprudence evolved by the Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are called upon to dispense equal justice. Apart from the socio-economic inequalities accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a situation, the Court has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. The Courts, in such situations, generally invoke the principle of fairness and equality which are essential for dispensing justice. Purposive interpretation is given to subserve the ends of justice particularly when the cases of vulnerable groups are decided. The Court has to keep in mind the 'problem solving approach’ by adopting therapeutic approaches to the maximum extent the law permits rather than 'just deciding’ cases, thereby bridging the gap between law and life, between law and justice. The notion of access to justice is to be taken in a broader sense. The objective is to render justice to the needy and that means fair solutions to the conflict thereby providing real access to 'justice’. 12. Justice is a core value of any judicial system. It is the ultimate aim in the decision making process. In post-traditional liberal democratic theories of justice, the background assumption is that all humans have equal value and should, therefore, be treated as equal, as well as by equal laws. This can be described as 'Reflective Equilibrium’. 12. Justice is a core value of any judicial system. It is the ultimate aim in the decision making process. In post-traditional liberal democratic theories of justice, the background assumption is that all humans have equal value and should, therefore, be treated as equal, as well as by equal laws. This can be described as 'Reflective Equilibrium’. The method of Reflective Equilibrium was first introduced by Nelson Goodman in 'Fact, Fiction and Forecast’ (1955). However, it is John Rawls who elaborated this method of Reflective Equilibrium by introducing the concept of 'Justice as Fairness’. While on the one hand, we have the doctrine of 'justice as fairness’, as propounded by John Rawls and elaborated by various jurists thereafter in the field of law and political philosophy, we also have the notion of 'Distributive Justice’ propounded by Hume which aims at achieving a society producing maximum happiness or net satisfaction. When we combine Rawls’s notion of 'Justice as Fairness’ with the notions of 'Distributive Justice’, to which Noble Laureate Prof. Amartya Sen has also subscribed, we get jurisprudential basis for achieving just results for doing justice to the weaker section of the society. 13. From the human rights perspective, persons belonging to the weaker sections are disadvantaged people who are unable to acquire and use their rights because of poverty, social or other constraints. They are not in a position to approach the courts even when their rights are violated; they are victimized or deprived of their legitimate due. Here lies the importance of access to justice for socially and economically disadvantaged people. When such people are denied the basic right of survival and access to justice, it further aggravates their poverty. Therefore, even in order to eliminate poverty, access to justice to the poor sections of the society becomes imperative. In the instant case, it is the poverty which compelled the appellants to restrict the claim to Rs.115/- per sq. yard, as they were not in a position to pay the court fee on a higher amount.” 10. Therefore, even in order to eliminate poverty, access to justice to the poor sections of the society becomes imperative. In the instant case, it is the poverty which compelled the appellants to restrict the claim to Rs.115/- per sq. yard, as they were not in a position to pay the court fee on a higher amount.” 10. Claimants have also placed on record the assessment carried out by private valuator i.e. SukritVastu, Architects who issued reports Ex.PA to Ext.PE in cases related to award No. 21-A and Ext.PA to Ext.PC in cases related to award No. 22-A, but to substantiate the valuation stated therein, no evidence has been led by the claimants and therefore, the same cannot be taken into consideration for determining the amount of compensation to be awarded to the claimants for the structures in question. 11. In the impugned award Reference Court has rightly observed that value of houses assessed by PWD was determined by making deduction on the actual assessment made by Executive Engineer and thereafter extra cost has been added but the construction cost increased after the year 2000 has not been considered and relying upon Union of India vs. Savji Ram reported in (2004)9 SCC 312 he also rightly observed that after calculating cost of construction at the rate of rate prevalent at time of fixing compensation or working out present value of material, there is no scope for further deduction and in the assessment made by PWD premium on the enhanced rate of construction has not been given. But thereafter how and on what basis he has quantified the said enhancement as 25% was awarded by him is not clear. There is no material or discussion on record in this regard. Therefore, award passed by the Reference Court deserves to be interfered with. 12. On the question arises on what basis the amount of compensation of the structures of the claimants is to be determined, there are two valuation reports on record having significant variance therein. Initially, the PWD has determined the value of structures on the basis of HP Schedule Rates 1999, whereas the structures were acquired in the year 2003. Thereafter, pending consideration acquisition proceedings before the Land Acquisition Collector, re-assessment was carried out for adding the extra cost at the rate of 10% on the prevailing market rates on the date of notification under Section 4 of the Act. 13. Thereafter, pending consideration acquisition proceedings before the Land Acquisition Collector, re-assessment was carried out for adding the extra cost at the rate of 10% on the prevailing market rates on the date of notification under Section 4 of the Act. 13. The claimants were not satisfied from the valuation carried out by PWD and thus had approached the Deputy Commissioner,under whose directions DRDA had carried out the assessment of the structures on the basis of prevailing rates at the time of acquisition. 14. In reference petitions, claimants have specifically asserted their claim on the basis of DRDA report, whereas it has been opposed by the beneficiary with averments that assessment carried out by PWD is true and correct. It is settled position that stand/case of a party to lis is constructed by pleadings and same has to be proved by leading evidence. Pleadings are not substitute of proof as same has to be proved by leading relevant and admissible evidence. In absence of evidence, unproved pleadings cannot be basis for decision of the case. (See para 19 of Manager, Reserve Bank of India Balgalore vs. S. Mani and others (2005)5 SCC 100 and para 1 of Anvar P.V. vs. P.K. Basheer and others (2014)10 SCC 473 ). 15. Claimants have examined PW1 Dinesh Singh and PW2 Tilak Raj who, being Draftsman and Assistant Engineer of DRDA, remained closely associated in exercise undertaken for valuation of the structures in question and they have corroborated the said fact in their deposition. In cross examination, there is no suggestion put to them that they were not associated in process of assessment of structures of the claimants, rather there are suggestions put to these witnesses, which have though been denied, but suggesting that the preparation of assessment by these witnesses has not been disputed. In evidence of these witnesses, letter Ext.PW1/A written by the Deputy Commissioner to Assistant Engineer DRDA for carrying assessment and assessment report Ext.PW1/B along with list of house owners Ext.PW1/C sent by concerned SDO to the Deputy Commissioner in pursuant to letter Ext.PW1/A have been proved on record. The said documents have not been disputed in the cross examination to these witnesses or otherwise leading contrary evidence. The said documents have not been disputed in the cross examination to these witnesses or otherwise leading contrary evidence. Appellant has placed on record the valuation reports Ext.DA and Ext.DB, but the concerned Executive Engineer or any other official of PWD associated with preparation thereof has not been examined nor any material to substantiate the basis of assessment made in Ext.DA and Ext.DB has been placed on record. Also, there is no material on record to discard the assessment carried out by DRDA. Non-cross examination on a point deposed by witness amounts to admission/acceptance of that version. (See para 40 of Laxmi Bai vs. Bhagwant Bua ( (2013)4 SCC 97 , para 14 of Gian Chand and others vs. State of Haryana (2013)14 SCC 420 ) 16. To rebut the claims of claimants on the basis of parity with Kiran Rekha Sood’s case learned counsel for the beneficiary has relied upon Basawaraj and another vs. Special Land Acquisition Officer reported in (2013)14 SCC 81 wherein it is held that it is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases as the said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. 17. In present case, claim of the claimants, based upon any assessment carried out by themselves, has already been discarded. Now there are two evaluation reports based on assessment by PWD as well as DRDA made on the directions of Land Acquisition Collector and directions of the Deputy Commissioner respectively and there is nothing on record to reflect that any fraud has been committed at the time of assessing the value of structures of claimants or the same has been obtained by misrepresentation. Rather, assessment of DRDA has been admittedly beneficiary itself by accepting the award passed in RFA No. 415 of 2012 based upon the said report and therefore, it cannot be said that relying upon the said assessment of DRDA will amount to perpetuate illegality. 18. Rather, assessment of DRDA has been admittedly beneficiary itself by accepting the award passed in RFA No. 415 of 2012 based upon the said report and therefore, it cannot be said that relying upon the said assessment of DRDA will amount to perpetuate illegality. 18. There is another aspect that the award in favour of Kiran RakhaSood, one of the structure owners/claimants has been awarded compensation of the structure on the basis of report of DRDA. Her structure was also acquired in pursuant to the same notification under Section 4 of the Act and structure belonging to her was also assessed by Executive Engineer PWD as well as DRDA along with structures of the present claimants. In fact all the structures including her, were assessed together in one and the same assessment report prepared by Executive Engineer (PWD) as well as DRDA. 19. The judgment in Kiran Rekha Sood’s case in RFA No. 415 of 2010 was announced on 21.6.2017 and as informed no appeal against the said judgment has been preferred till date i.e. even after more than one year of passing of the same and even amount of compensation determined thereon also stands released in favour of the said claimant. Observations of the Apex Court in Narendra and others vs. State of Uttar Pradesh and others reported in (2017)9 SCC 426 are squarely covering these appeals. 20. In view of above discussion, the finding of the Reference Court with regard to the entitlement of the enhancement of the claimants is maintained, however, the same is modified to the extent that instead of compensation on the basis of assessment carried out by HPPWD with 25% addition, the structure owners/claimants are entitled for compensation on the basis of assessment carried out by DRDA along with all consequential statutory benefits like Kiran Rekha Sood’s case. The appeals as well as cross objections are disposed of in aforesaid terms. Record be sent back forthwith.