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2019 DIGILAW 1173 (HP)

Dhanu (Deceased) Through Lrs. v. State Of H. P.

2019-08-14

VIVEK SINGH THAKUR

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JUDGMENT : Vivek Singh Thakur, J. All these appeals, preferred by the State of H.P. as well as land owners, arising out of common award passed by learned District Judge, Solan (hereinafter referred to as 'the Reference Court') in Land Reference Petitions No. 23-S/4 of 2008, titled Dhanu vs. State of H.P., 24-S/4 of 2008 titled Jodha Singh and others vs. State of H.P. and others and 6-S/4 of 2008 titled Tulsia and others vs. State of H.P. and others involving common question of facts and law, are being decided vide this common judgment. 2. Appeals bearing Nos. 356 of 2009 titled Dhanu (deceased) through LRs vs. State of H.P., 357 of 2009 titled Tulsia (deceased) through LRs vs. State of H.P. and 358 of 2009 titled Baldev Raj vs. State of H.P. have been preferred by land owners for further enhancement, whereas appeals bearing Nos. 382 of 2009 titled State of H.P. vs. Baldev Raj, 383 of 2009 titled State of H.P. vs. Dhanu (deceased) through LRs and 384 of 2009 titled State of H.P. vs. Tulsia (deceased) through LRs have been preferred by the State being aggrieved by enhanced value determined by the Reference Court. 3. State of H.P. has acquired land situated in village Gather, Tehsil Arki, District Solan for construction of Namhol-Bahadurpur road by invoking the provisions of Land Acquisition Act (hereinafter referred to as 'the Act') after issuing notification dated 17.8.2006 under Section 4 of the Act, which was lastly published on 10.12.2006. The Land Acquisition Collector vide its award No. 34 of 2007 dated 10.12.2007 had determined the value of land on the basis of classification i.e. cultivable at the rate of Rs.29,947/- per bigha and uncultivated land at Rs.5757/- per bigha. 4. The land owners being aggrieved by value determined by the Land Acquisition Collector had preferred land reference petitions (referred supra) for enhancement of compensation. Land owners have examined as many as six witnesses to substantiate their claims, whereas State has examined one witness. 5. Land owners have proved on record sale deed Ext.PW1/A dated 25.8.2004 pertaining to village Thach whereby two biswas of land was sold for Rs.80,000/- which gives the value of land at Rs. 8 lac per bigha. Land owners have examined as many as six witnesses to substantiate their claims, whereas State has examined one witness. 5. Land owners have proved on record sale deed Ext.PW1/A dated 25.8.2004 pertaining to village Thach whereby two biswas of land was sold for Rs.80,000/- which gives the value of land at Rs. 8 lac per bigha. Other sale deeds placed on record by land owners are Ext.PW2/A dated 20.4.2004, Ext.PW2/B dated 24.11.2004 whereby respectively two biswas and one biswa of land in village Tepra was sold at the rate of Rs.8 lac per bigha. Land owners have also proved on record sale deed Ext.PW2/C dated 24.11.2004 whereby one biswa of land in village Tepra was sold for Rs.50,000/- giving the value of land Rs.10 lacs per bigha. Land owners have also put reliance on award passed by the Reference Court Ext.PW2/D pertaining to land of village Ghayaal wherein value of acquired land for the same road in that village in the year 1995 was determined as Rs.1,20,000/- per bigha. 6. The State has also placed on record sale deed of village Chanaradi Ext.RW1/B, whereby four bighas/five biswas of land was sold for Rs.8,000/-. 7. Reference Court, on the basis of award Ext.PW2/D after adding 10% for each year from the date of passing of that award till issuance of Notification under Section 4 of the Act in present case, has determined value of land under acquisition as Rs.1,92,000/- per bigha. 8. The State has preferred the present appeals on the grounds that Reference Court has committed an error by ignoring sale deed Ext.RW1/B and relying upon the award Ext.RW2/D for determining the value of land under acquisition. 9. It is also claimed by land owners that their land was taken in possession prior to issuance of notification under Section 4 of the Act and therefore, they are entitled for use and occupation charges for the period from taking the possession of land till date of issuance of notification under Section 4 of the Act particularly in the light of law laid down by the Apex Court in Balwant Singh and others vs. Land Acquisition Collector and another, (2016) 13 SCC 412 , wherein after considering and relying upon judgment passed in cases R.L.Jain(D) by LRs Vs. DDA, (2004) 4 SCC 79 , Madishetti Bala Ramul vs. Land Acquisition Officer, (2007) 9 SCC 650 and Tahera Khotoon vs. Land Acquisition Officer, (2014) 13 SCC 613 , land owners in the similar circumstances were awarded an additional interest by way of damages @ 15% per annum from taking the actual possession till the date of Notification under Section 4 of the Act. On this count, land owners have also placed reliance on judgment dated 31.7.2017 passed by this Court in RFA No. 252 of 2011 titled State of HP vs. Dhani Ram and others. 10. Claim for further enhancement has also been canvassed on the basis of sale deeds Ext.PW1/A, Ext.PW2/A, Ext.PW2/B and Ext.PW2/C. Admittedly, these sale deeds are of the period which is beyond 12 months from the date of issuance of notification or last publication thereof and further in these sale deeds land involved belongs to village Thach and Tapera. Neither in reference petitions nor in the statements of witnesses, examined by land owners, any evidence with respect to equivalency of land of village Gather with that of villages Thach and Tapera qua its nature, quality and potential has been brought on record. Therefore, for these two reasons, these sale deeds could not have been taken into consideration and Reference Court has rightly discarded these sale deeds at the time of determining the value of land. 11. Sale deed Ext.RW1/B pertains to village Chanardi. It is dated 31.1.2006. Further the State has also not produced any evidence of equivalency or proximity qua nature, quality and potential of land of Chanardi with that of village Gather and not only this, in case this sale deed is taken into consideration, the value of land will become lesser than the value as determined by the Land Acquisition Collector, which is not permissible under Section 25 of the Act. Therefore, Reference Court has rightly ignored this piece of evidence. 12. So far as the claim of land owners that the land was taken in possession prior to issuance of notification under Section 4 of the Act is concerned, the evidence on record on this point is not conclusive but self contradictory. In reference petitions in para 1(vi), land owners have claimed that land was taken into possession in the year 2000. The said averment has been denied by the State in their reply to the reference petitions. In reference petitions in para 1(vi), land owners have claimed that land was taken into possession in the year 2000. The said averment has been denied by the State in their reply to the reference petitions. In evidence of PW1, in his examination-in-chief, the year of taking possession by the State has been mentioned as 1988, whereas suggestion has been put to RW1 Babu Ram Thakur that land in question was taken in possession by the State in the year 1998. In view of this contradictory evidence led by land owners themselves the exact date, of taking possession, has not been established on record. To the contrary, evidence on issue in RFA No. 252 of 2011, was consistent, cogent and reliable which was also not rebutted by the State. Therefore, there is no other alternate except to reject the claim of land owners on this count for cogent and reliable evidence with respect to date of taking possession of the land in question. 13. So far as the award Ext.PW2/D is concerned, it pertains to village Ghayaal. In para 2 of affidavit, filed in evidence as examination-in-chief of PW2 Rattan Lal and PW3 Lekh Ram, it has been categorically stated by land owners that land of village Gather is similar to village Ghayaal and the said assertion has not been questioned on behalf of the State in cross examination to these witnesses and RW1 Babu Ram Thakur is also silent in this regard. Therefore, the claim of land owners with regard to equivalency of land of village Ghayaal with that of village Gather remains un-controverted. In aforesaid facts and circumstances, the Reference Court has rightly relied upon award Ext.PW2/D for determining the value of land under acquisition. 14. It is an admitted fact that in Ext.PW2/D notification under Section 4 of the Act was issued on 29th March, 1995 and therefore value of land therein, was determined as it was on 29th March, 1995. Though the Reference Court has passed the award on 22.8.2000 but passing of award cannot be taken as a date on which value of land was determined. Reference Court has given 10% enhancement for each year after the year 2000 by considering that value of land keeps on increasing every year. Though the Reference Court has passed the award on 22.8.2000 but passing of award cannot be taken as a date on which value of land was determined. Reference Court has given 10% enhancement for each year after the year 2000 by considering that value of land keeps on increasing every year. On this ground, at the time of calculating 10% enhancement from the year 2000, the Reference Court has committed an error as the value so determined vide award Ext.PW2/D was to be considered as a value determined in the year 1995 and enhancement, if any, was to be calculated from that year. In case on the value of Rs.1,20,000/-, as determined vide award Ext.PW2/D, 10% enhancement is given by taking the base year 1995, the value of land in the present case will become about Rs.3,11,200/- per bigha. It gives the increase of Rs.1,91,207/- to the basic value of Rs.1,20,000/-. It is also a fact that it is not necessary that value of land is increased every year at uniform rate of 10%. It may be higher or lesser than 10%. After 1995, there is a gap of ten years between the value determined vide award Ext.PW2/D and in the present case. In case it is considered that in lump sum, there is enhancement of 100% value in the land within ten years, an addition of Rs.1,20,000/- will be appropriate and thus, value of land becomes Rs.2,40,000/- per bigha. 15. Therefore, in view of above discussion, I am of the considered view that value of land in the present case deserves to be determined at the rate of Rs.2,40,000/- per bigha and accordingly the respondents/land owners are held to be entitled for compensation on the basis of value of land at the rate of Rs.2,40,000/- per bigha along with all consequential statutory benefits. Therefore, appeals No. 356 to 358 of 2009 filed by land owners are allowed and appeals No. 382 to 384 of 2009 filed by the State are dismissed in aforesaid terms. All pending miscellaneous application(s), if any, also stands disposed of.