Himachal Pradesh High Court

Lekh Ram (Deceased) Through vs Executive Engineer on 29 September, 2023

Bench: Virender Singh

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

RFA Nos.410 to 415 of 2015 Reserved on: 20th September, 2023

                         Decided on: 29th September, 2023





    1.             RFA No.410 of 2015





    Lekh Ram (deceased) through
    LRs & Others                                       ...Appellants





                              Versus

    Executive Engineer, HPPWD & Another             ...Respondents

    2.             RFA No.411 of 2015

    Lobhi Ram                                          ...Appellant

                              Versus



    Executive Engineer, HPPWD & Another             ...Respondents




    3.             RFA No.412 of 2015





    Naratu & Another                                  ...Appellants

                              Versus





    Executive Engineer, HPPWD & Another             ...Respondents

    4.             RFA No.413 of 2015

    Shakuntla Devi & Others                          ...Appellants

                              Versus

    Executive Engineer, HPPWD & Another             ...Respondents







        5.                        RFA No.414 of 2015

        Krishan Lal & Others                                                       ...Appellants

                                                 Versus




                                                                                      .

         Executive Engineer, HPPWD & Another                                      ...Respondents

        6.                        RFA No.415 of 2015





        Kanshi Ram & Others                                                        ...Appellants

                                                 Versus

Executive Engineer, HPPWD & Another

Coram r to The Hon'ble Mr. Justice Virender Singh, Judge.

...Respondents

Whether approved for reporting?1

For the appellants: Mr. Dheeraj Thakur, Advocate, in all the appeals.

For the respondents: Mr. Tejasvi Sharma, Mr. H.S.

Rawat and Mr. Mohinder Zharaick, Additional

Advocates General.

Virender Singh, Judge.

The above titled appeals, are being disposed of,

by a common judgment, as all these appeals, have been

filed against the award dated 04.05.2015, passed by the

Court of learned Additional District Judge, Ghumarwin,

District Bilaspur, H.P. (hereinafter referred to as the 'learned

trial Court).

Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

2. Vide award dated 04.05.2015, the learned trial

Court had decided a batch of 7 land reference petitions,

lead case, whereof was Land Reference Petition No.16/4 of

2011, titled as Lekh Ram (deceased) through LRs & Others

versus Land Acquisition Collector & Another.

3. Vide award impugned herein, the learned trial

Court had dismissed the reference petitions filed by the

appellants.

4. For the sake of convenience, the parties to the

present lis are hereinafter referred to, in the same manner,

as were, referred to, by the learned trial Court.

5. Brief facts, leading to the filing of the present

appeals, before this Court, may be summed up, as under:-

5.1. The State of Himachal Pradesh has issued a

Notification under Section 4 of the Land Acquisition Act,

1894 (hereinafter referred to as the Act'), on 30.04.2004, for

acquisition of land situated in village Patta Nodwan, Tehsil

Namhol, District Bilaspur for construction of Namhol-Asha-

Majari road.

5.2. As per mandate of the Act, the notification under

Section 4 of the Act, was given wide publicity. Thereafter,

other codal formalities, as per Sections 6 and 7 of the Act,

were completed and ultimately, award No.8 dated

30.04.2008, was passed.

5.3 In the present cases, total area of about four

bigha and seven biswa has been acquired. The details of

the land acquired by the Land Acquisition Collector, is

reproduced, as under:-


      District   Sub Tehsil     Village   Khasra No.                Area
     Bilaspur     Namhol         Patta                      Bigha          Biswa





                                Nodwan

5.4. The Land Acquisition Collector has assessed the

value of the acquired land, on the basis of the approved

market value, which has been conveyed to the Land

Acquisition Collector by the District Collector, vide letter

dated 15.09.2007.

5.5. Petitioners were not satisfied with the market

value of the acquired land, as assessed by the Land

Acquisition Collector, in award No.8 of 2008. As such, they

had preferred the reference petitions under Section 18 of

the Act, before, the Land Acquisition Collector, who had

forwarded the same to the learned trial Court, for

adjudication, as per law.

6. In the reference petitions, it has been pleaded

that the Land Acquisition Collector has not assessed the

proper market value, on the basis of the relevant factors

and the commercial potentiality of the acquired land.

7. Highlighting, features of the acquired land, it is

their case that near the acquired land, there were Hospital,

School, town, Government Offices. According to the

petitioners, these facts have been ignored by the Land

Acquisition Collector.

8. Similarly, the market value of the trees has not

been assessed by the Land Acquisition Collector. They have

claimed the market value of the acquired land, as

Rs.30,00,000/- per bigha, a sum of Rs.4,00,000/- for fruit

bearing and other trees and Rs.5,00,000/- for improvements,

made in the acquired land. Apart from this, the statutory

benefits, as per the Act, have also been claimed.

9. When put to notice, the reference petitions have

been contested by the respondents by filing reply, in which,

preliminary objections have been taken that the adequate

compensation has been paid on the basis of market value,

as assessed by the Collector; and the reference is barred by

limitation.

10. On merits, the factual position, with regard to the

acquisition of the land, has not been disputed, but,

according to them, the market value of the acquired land

has been assessed, by the Collector, on the basis of the

rates, approved by the District Collector, Bilaspur, after

affording due opportunity to the petitioners.

11. So far as the commercial potentiality of the

acquired land is concerned, the factual position, with regard

to the existence of Hospital, School, Town, Government

Offices and other basic facilities, has been denied, by

asserting the fact that village Patta Nodwan, is situated, at a

distance 4.5 k.m. from Namhol and there was no motorable

road, in this village earlier. Lastly, it has been asserted that

all statutory benefits have been given.

12. Thus, a prayer has been made to reject the

reference petitions.

13. From the pleadings of the parties, the following

issues were framed by the learned trial Court, in all the

petitions, vide order dated 18.07.2012:-

1. Whether the Collector, Land Acquisition, had inadequately assessed the market value of the land under acquisition? OPP

2. If issue No.1, is proved in affirmative, whether the petitioner is entitled for enhancement, if so, at what

.

               rate?                                            OPP





          3.   Whether the petition is time barred?                   OPR





          4.   Relief.

14. Thereafter, vide order dated 19.10.2012, passed

in Land Reference Petition No.16/4 of 2011, the reference

petition No.14, 15, 18, 20, 21 and 22-4 of 2011, were

ordered to be consolidated.

15. Thereafter, the parties to the lis were directed to

adduce evidence.

16. After the closure of evidence, upon hearing the

learned counsel appearing for the parties, the learned trial

Court, has dismissed the reference petitions, vide award, as

referred to above, which has been challenged before this

Court.

17. Petitioners have assailed the award, by filing the

above mentioned Regular First Appeals, before this Court,

on the grounds that the award is not sustainable in the eyes

of law, as, the learned trial Court has failed to consider the

statement of PW-1, who is Patwari of the area concerned, in

which, he has categorically stated that the boundaries of

village Patta Nodwan, as well as, village Sosan are adjoining

and Ex.PW-1/B is clearly indicative and proof of the same.

Statement of PW-1, has been rejected, without any cogent

reason.

18. Similarly, the document, Ex.PW-1/B, has also

been relied upon, to assail the award, on the ground that

the subject matter of the sale deed is abutting to Sosan

village. According to them, in village Sosan, respondent

No.2, has given the market value of the acquired land, at

the rate of Rs.21,106/- per biswa. The certified copy of the

sale deed pertaining to village Sosan was submitted, but,

the same has not been considered by the learned trial

Court.

19. On the basis of the above facts, the petitioners

have sought the market value of the acquired land at the

rate of Rs.77,000/- per biswa, along with statutory benefits.

20. The prayer so made, has been opposed by Shri

H.S. Rawat, learned Additional Advocate General, appearing

for the respondents, on the grounds that the learned trial

Court has rightly considered the evidence, so adduced by

the parties, before the learned trial Court. As such, a prayer

has been made to dismiss the appeal.

21. In order to decide the present appeals, in an

effective manner, it would be just and appropriate for this

Court to discuss the evidence, so adduced by the parties to

the lis, before the learned trial Court.

22. After framing the issues, the petitioners have

examined Jay Lal, Patwari, as PW-1, who has deposed that

village Patta Nodwan, is within Patwar Circle, Dhuni Panjail.

Namhol-Asha-Majari road is being looked after by the Public

Works Department. r The said road connects Namhol with

village Sosan, Duglu, Patta Nodwan and Panjail Kalan.

Village Patta Nodwan and Sosan are adjacent to each other.

He has proved the average value of the land in village

Sosan Ex.PW-1/A and Tatima Ex.PW-1/B, pertaining to village

Sosan and Patta Nodwan. In cross-examination, he has

admitted that the document Ex.PW-1/A has not been

counter signed by any one.

23. PW-2 Suman Kumar, has deposed that the land in

village Patta Nodwan, was acquired, in the year 2004, for

construction of Namhol-Asha-Majari road. The road was

constructed about ten years ago. The market value, which

was awarded to them, is stated to be on lower side. He has

further deposed that their village is situated adjacent to

village Sosan, which is near National Highway No.88. There

were about 200 shops, Electricity, PWD and IPH Sub

Divisions, Community Health Centre and School. He has

claimed the value of the land, on the basis of the land

situated in village Sosan. He has also deposed about the

commercial potentiality of the acquired land.

24. This witness has admitted that their village is

situated about 4.5-5 kilometers from Namhol. In village

Patta Nodwan, neither there is any school, dispensary, nor

any Government office, and for these facilities, they had to

go to Namhol. After construction of the road, they used to

get appropriate price for their agricultural produce.

25. Lastly, this witness has deposed that the market

value of the remaining land has been increased. Rest, he

has denied all the suggestions, which were put to him, by

the learned ADA.

26. To rebut this evidence, the respondents have

examined RW-1, Roshan Lal Kaundal, Junior Engineer, who

has deposed that he was posted in District Bilaspur from the

year 2004 to 2005, as Junior Engineer. The road known as

Namhol-Asha-Majari, was constructed about 14-15 years

ago. Petitioners were paid the compensation of the

acquired land, on the market rates approved by the District

Collector. After construction of the road, all the basic

amenities were being provided to them. Prior to that, no

amenities were there.

27. In the cross-examination, this witness has

deposed that sub-tehsil, is situated in village Sosan and just

adjacent to this village, police post is also there. In village

Sosan, there is vegetable market. He has admitted that the

residents of villages Patta Nodwan, Sosan, and Jamla, used

to cultivate Tomato and ginger.

28. So farr as the documentary evidence is

concerned, Ex.PW-1, is average of Sosan Village, Ex.PW-1/B

is Tatima, Ex.RA is copy of the sale deed dated 06.12.2000,

Ex.RB is copy of the sale deed dated 21.06.2001.

29. This is the entire evidence adduced by the

parties.

30. Learned trial Court, in these cases, has dismissed

the reference petitions, by holding that the petitioners had

failed to establish the fact that adequate compensation has

not been paid to them, on the basis of the market value of

the acquired land, prevailing at the time of issuance of the

notification under Section 4 of the Act.

31. The sale deeds, which have been relied upon, by

the respondents, are of village Sohari, Pargana Bahadurpur,

whereas, the acquired land is situated in village Patta

Nodwan.

32. The onus is upon the petitioners to prove the

market value of the acquired land, prevailing, at the time of

issuance of notification, under Section 4 of the Act.

33. The petitioners have not produced any sale deed

for being considered, as exemplar sale deed. They had

simply relied upon the document Ex.PW-1/A, which is

pertaining to Village Sosan, Pargan Bahadarpur. According

to this document, one year average price of village Sosan is

Rs.2,33,340/-.

34. Ex. PW1/B, is the Aks Tatima Mohal Sosan,

Pargana Bahadarpur, Sub Tehsil Namhol, District Bilaspur.

Perusal of this document shows that village Patta Nodwan is

adjacent to village Sosan.

35. When, the petitioners could not produce any sale

deed, for being considered, as exemplar sale deed, then,

this Court has to apply the principle of guesstimate to

determine the market value of the acquired land, as per the

decision of Hon'ble apex Court in Krishan Kumar versus

Union of Indian and Another, (2015) 15 Supreme

Court Cases, 220. Relevant paragraphs 23 to 25 of the

judgment are reproduced, as under:-

"23. We would like to point out at this stage the argument of Mr. Shishodia, learned senior counsel who appeared in some of these appeals, to the effect that in the absence of any evidence of exemplar depicting sale value, the Court is required to do guesswork. In support of this

proposition, he placed reliance upon the decision

of this Court in Trishala Jain v. State of Uttaranchal, as well as, K.S. Shivadevamma v. Commissioner and Land Acquisition Officer. In the

present case, as the only sale deed on which reliance was placed (Exhibit PW-1/2) stands rejected, there is no other exemplar in the form of sale deed. The learned counsel wants us to 'guesstimate' the market value. In Trishala Jain,

the Court laid down the circumstances when application of 'guesstimate' principle is to be applied. This can be found in para 65 of the said judgment which reads as under:

"65. It will be appropriate for us to state

certain principles controlling the application of "guesstimate".

(a) Wherever the evidence produced by the parties is not sufficient to determine

the compensation with exactitude, this principle can be resorted to.

(b) Discretion of the court in applying

guesswork to the facts of a given case is not unfettered but has to be reasonable

and should have a connection to the data on record produced by the parties by way of evidence. Further, this entire exercise

has to be within the limitations specified under Sections 23 and 24 of the act and cannot be made in detriment thereto."

24. Keeping in view the aforesaid principles, and having peculiarity of the present appeals where there is total absence of exemplars, we are of the opinion that some increase, but only marginal one, can be ordered over and above the circular rates fixed by the Government Orders. In Land Acquisition Officer v. Karigowda, following pertinent observations were made by this Court:

"90...The Court is entitled to apply some [amount] of reasonable guesswork to

balance the equities and fix a just and fair market value in terms of the parameters specified under Section 23 of the Act."

25. This Court can indulge in the same reasonable guesswork to balance the equity for

.

fixing just and fair market value. In the absence

of any other exemplar in the form of sale deed, though it is difficult to say as to what extent the actual market value was higher in

contradistinction to the value of land fixed by the Government in the aforesaid Notifications, we are of the opinion that as a thumb rule an increase of ₹1,00,000/- per acre be granted, in the peculiar facts and circumstances of this case."

(Self emphasis supplied)

53. Petitioners have placed on record the copy of the

sale deed, dated 12.2.2004, pertaining to Mohal Sosan and

copy of the sale deed dated 6.4.2003 of Mauza Dhabar,

Pargana Bahadurpur. These documents were, although,

placed on record, but, neither relied upon, by the

petitioners. In such situation, mere production of the

documents does not fulfill the mandate of Section 51-A of

the Act.

54. The provisions of Section 51-A of the Act, are

reproduced as under:-

"51A Acceptance of certified copy as evidence. In any proceeding under this Act, a certified copy of a document registered under the Registration Act, 1908 (16 of 1908), including a copy given under Section 57 of that Act, may be accepted as evidence of the transaction recorded in such document."

55. If the stand of the petitioners is seen, in view of

Section 51A of the Act, then, mere production of the sale

deed, is not sufficient, as, the same has not been tendered

into evidence.

56. The legislature, in its wisdom, has used the word,

'evidence' in Section 51A of the Act. Admittedly, there is no

exemplar sale deed. In such situation, in order to assess

r to the market value of the acquired land, for which, the

petitioners are entitled to, this Court has to go to the award,

passed by the Land Acquisition Collector. Para IV of the

award passed by the Land Acquisition Collector assumes

significance. The same is reproduced, as under:-

"IV The land under acquisition is situated in village Patta Nodwan, sub-tehsil Namhol, District Bilaspur, and for this village District

Collector Bilaspur, approved market value per bigha Kohli Aval, @ Rs.41521/- Bharali Dom

@11555/-, Banjar and Kharyatar @3718/- for the land under vide his office letter No.BLS- ADRA-4-(9)/94-6-35366, dated 15.9.2007 and

award statement on the basis of approved rate by the District Collector is prepared by the field revenue agency and placed on the record file."

57. The statement of calculation of the land by the

Land Acquisition Collector is annexed with the award.

Perusal of the same shows that the value of the land has

been assessed, by the Land Acquisition Collector, on the

basis of its classification, which is not sustainable, in the

eyes of law, as, when, the land is acquired for the same

purpose i.e. for construction of Namhol-Asha-Majari road,

then, the valuation of the same, on the basis of the

classification of land, is not sustainable, in the eyes of law.

As such, the acquired land is to be assessed, on the basis of

the approved market value for Kohli Aval land, which has

been mentioned, as Rs.41,521/- per bigha.