Judgment:
A.K. Goel, J.
1. Since all the aforesaid appeals have arisen out of common award, as such we propose to take up and dispose of these appeals together and by a common judgment.
2. Brief facts of this case are that land was proposed to be acquired for public purpose namely, for construction of National Highway-21 and for this purpose Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) was issued vide Notification SE-VI/1A-Padoh/G-V-l9638-42, dated 23-1-1982 by Himachal Pradesh Government in its Public Works Department. Notification under Sections 6 and 7 was issued on 24-1-1983. Thesewere followed by further notice under Section 9 of Land Acquisition Act to the persons interested, who appeared before the Land Acquisition Collector. Total land sought to be acquired was 9-2-13 bighas and was of different qualities, viz., Barani-I 6-3-10 bighas, Barani-II 1 -8-5 bighas, Banjar Kadim 0-0-9 bighas, Gair Mumkin 1-8-17 bighas and Kharater 0-1-12 bighas. Market value of the land on the date of notification under Section 4 was assessed quality-wise by the Land Acquisition Collector whereby rate of Barani-I was fixed at Rs. 9,140/- per bigha, Barani-II was fixed at Rs. 6,155/- per bigha, Banjar Kadim was fixed at Rs. 2,285/- perbigha, Kharater was fixed at Rs. 1900/- per bigha and Gair Mumkin was fixed at Rs. 1,900/- per bigha. It was on this basis that the market value of the land was assessed and compensation awarded on this rate to the land owners concerned. Besides this market value of the land, value of structures as well as of trees was also assessed as per award dated 31-3-1984 made by the Land Acquisition Collector. Since the claimants (hereinafter referred to as the appellants) were not satisfied with the compensation awarded by the Land Acquisition Collector, reference applications were filed by them under Section 18 for determination of compensation by the District Court under the Act.
3. The land references came up for consideration before the District Judge, Mandi who, by means of impugned award, has fixed the market value of the land at the rate of Rupees 2,000/- per biswa in respect of Barani land and Rs. 500/- per biswa in respect of the Khadyatar land and Gair Mumkin land had ordered enhancement of compensation accordingly while deciding issue No. 1, but had not allowed any enhancement with regard to the houses/shops standing on the acquired land and has thus answered issue No. 2 in the negative.
4. Appellants in the present appeals have prayed enhancement of compensation as awarded by the Land Acquisition Collector on both counts i.e. land as well as for structures. It may be appropriate to point out that Land Acquisition Collector had consolidated all the references arisen out of this award and issues were framed which are to the following effect:--
1. What was the market rateof the land acquired at the time of notification under Section 4 of theLand Acquisition Act. Whether the petitioners are entitled to enhancement of compensation for the loss, if so, to what amount? OPP.
2. Whether the petitioners are entitled to the enhanced compensation with regard to the notice/ shops acquired in the award, if so, to what amount? OPP.
3. Whether the petitioners are entitled to the enhanced amount with regard to the trees acquired in this land, if so, to what amount? OPP.
4. Whether the petitioners are entitled to any compensation with regard to good will/loss of earning/carriage, if so, to what amount? OPP.
5. Whether the petitioners are entitled to the enhanced rate of compulsory charges under Section 23(2) of the Act, if so to what amount OPP
6. Whether the petitioners are entitled to the interest on the market value of the property, if so in what terms? OPP.
7. Relief.5. Issue No. 1, as pointed above, was also decided in favour of the appellant. Issues No. 2 and 3 were answered in the negative. Under issue No. 4, one Ratan Chand was found entitled for payment of compensation on account cf good will and loss of earning/carriage. Issues No. 5 and 6 were decided in favour of the appellant and thus relief was allowed to the appellants and Rattan Chand. Learned counsel for the appellants submitted that in the instant case it has been held by the Court below that transaction which was covered under sale deed.
Ex.PW-9/A was in fact a bona fide transaction. This sale deed is of 5-12-1979 and is situated in village Thalaut where the land under acquisition is situated. Once it was held to be bona fide, then it is not understood as to how and on what basis the Court below has assessed the price of land at the rate of about Rs. 2,000/- per biswa for Barani and Rs. 500/- per biswa for Khadyatar. It has further been pointed out that the assessment of price of land is not to be made on the quality of the land but should have been made on uniformal basis irrespective of its quality or nature. Thus, it has been urged that the appellants are entitled to compensation al the rate of Rs. 4,000/- per biswa besides solatium and interest as permissible under the provisions of Land Acquisition Act. Regarding compensation payable for the structures standingon the land under acquisition, it was urged that the statement of Tara Chand (PW 4) has been wrongly rejected, by the Court below. While further advancing argument in this behalf, it was pointed out by the learned counsel for the appellant that so far the appellants are concerned, the expert (PW 4) examined by their clients had been able to withstand the cross examination and in case reference is made to his statement together with the valuation report submitted by him, the same meets all the requirements under Section 45 of the Evidence Act. As such, it was prayed that the compensation for the structures was liable to be awarded, as claimed by them.
6. Statement of the expert examined on behalf of the respondent, RW-2 N.R. Verma was also questioned by the appellants as also his assessment vide Ex. R.W.-2 and R.W.-3 and it was pointed out that in both these documents only calculation has been made without there being anyting to show the basis therefor and no reasons, whatsoever have been given. In his cross examination the witness has admitted that on the land belonging to Lalit Kumar and Mohinder Kumar is shown as 'A' Class building, still the fact remains that no reasons whatsoever have been given in the reports or in the Court in support of version made by this R.W.-2 while submitting the same.
7. It is clear from the evidence on record that there is only one sale transaction relating to 0-3-12 bighas of land which is dated 5-12-1979 and the sale was effected by one Lal Dass in favour of Gian Chand. Since Lal Dass had died, his son Bihal Singh has appeared as P.W.-9 and restated that the sale was effected by his father and the entire consideration of Rs. 14,000/- was received by the deceased before the Sub-Registrar. Gian Chand is purchaser of this land who has appeared as P.W.-10 and has also corroborated P.W.-9 regarding the area and payment of sale consideration. This sale, as pointed above, has been to be held to be bona fide by the Court below. On the other hand, for establishing the market value of the land on the date of notification under Section 4 of the Act, the State has placed reliance on Ex. 'R-1' Ausat Panch-Sala besides examining R.W.-1 Chandel Ram Patwari Aul, according to this average, value of the land during the period 1977 to 1983 was Rs. 7,827.30 paise per bigha, there is no other eivdence led on behalfof the State in order to establish the market value of the land in question at the relevant point of time. This is the entire evidence produced by the parties regarding price of the land.
8. Now the question arises as to how to assess the market value of the land in the face of aforementioned evidence. No doubt, almost 3 years prior to the notification under Section 4 of the Act, the land was sold vide Ex. P.W.-9/A in the same village where the land under acquisition is situated at the rate of about Rs. 4,000/- per biswa and this transaction stands duly proved in accordance with law. Learned Additional Advocate General has submitted that firstly this cannot be made the basis of assessing the market value. Alternatively, it was urged that if this submission does not find favour, then in that event price of the land fixed by the learned District Judge calls for no interference, as according to him, it is just, reasonable and fair compensation and thus, he has urged for dismissal of these appeals. It was also pointed out that even if this sale is to be made basis of the compensation for assessing the market value, then in that event the other relevant method isby allowing deduction on acount of whole-sale and retail price. This is so because the land which was subject matter of Ex. P.W.-9/A is a very small parcel whereas the total area under acquisition is fairly large one. It was pointed out by the learned counsel for the appellants that the area of all the appellants is very small as is evident from their holdings which have been acquired and in such circumstances the criteria for assessing of market value should be arrived at on the basis of Ex. P.W.-9/A. It was also urged that there is no development involved in the acquisition in question as no areas are required to be left for common areas, common purposes, parks etc. Therefore, no deduction on the market value is required to be made.
9. After having given our thoughtful consideration, we are of the considered opinion that the price of the land which was at about Rs. 4,000/- per biswa 3 years prior to the date of notification under Section 4 of the Act would not remain static and this Court cannot lose sight of the fact that so far the prices of the land are concerned, there has been seen an over-all upward trend. Not only this but the Court can reasonably assume that price of lands must have gone upbetween 5-12-1979 (the date of Ex. P.W.-9/A) and 23-11-1982 (the date of notification under Section 4 of the Land Acquisition Act in the present case). Judicial notice of this fact needs to be taken by this Court keeping in view the continuous rising inflation and rising land values.
10. In the context of area under acquisition being bigger and the sole instance of Ex. P.W. 9/A being smaller thus allowing deduction on the price of the area under acquisition, It may not be out of place to state that it is not an absolute proposition that large area of land is not likely to fetch price at the same rate at which small plots are sold. In fact, in a given situation, like the present one, it would be justified to consider and make the price fetched by small plot of land for arriving at market value of the land under notification under Section 4 of the Land Acquisition Act. It may again bereiterated here that the land under acquisition consists of small plots like the one which is subject matter of Ex. P.W.-9/A and both have the same advantages. In these circumstances it can be safely said that the smallerplot covered by Ex. P.W.-9/A is put to the same use to which the area under acquisition could be advantageously put to as both were situate in the same vicinity, and there was no requirement of further development on this count, also the principle of deduction of value for the purpose of comparison is not warranted.
11. As a result of this discussion it is held that the market value of the land on the date of acquisition is Rs.4,000/- per biswa. In this context it is further held that the value of the land under acquisition is to be assessed irrespective of its classification and nature ignoring the purpose to which it was being put prior to the acquisition, as well as to the one it is liekly to be put thereafter, Consequently, the appellants are held entitled to compensation at the rate of Rs. 4,000/- per biswa uniformally for all qualities of land and it is ordered accordingly. In taking this view, we are guided by the judgment of the Hon'ble Apex Court reported in AIR 1992 SC 2298, Bhagwathula Samanna v. Special Tehsildar and Land Acquisition Officer, Visakhapatnam Municipality, and the relevant abstracts from the said judgment are as under (paras 7, 11, 13):--
'In awarding compensation in acquisition proceedings, the Court has necessarily to determine the market value of the land as on thedate of the relevant Notification. It is useful to consider the value paid for similar land at the material time under genuine transactions. The market value envisages the price which a willing purchaser may pay under bona fide transfer to a willing seller. The land value can differ depending upon the extent and nature of the land sold. A fully developed small plot in a important locality may fetch a higher value than a larger area in an undeveloped condition and situated in a remote locality. By comparing the price shown in the transactions all variables have to be taken into consideration. The transaction in regard to smaller property cannot, therefore, be taken as a real basis for fixing the compensation for larger tracts of property. In fixing the market value of a large property on the basis of a sale transaction for smaller property, generally a deduction is given taking into consideration the expenses required for development of the larger tract to make smaller plots within that area in order to compare with the small plots dealt with under the sale transaction.
The principle of deduction in the land value covered by the comparable sale is thus adopted in order to arrive at the market value of the acquired land. In applying the principle it is necessary to consider all relevant facts. It is not the extent of the area covered under the acquisition, the only relevant factor. Even in the vast area there may be land which is fully developed having all amenities and situated in an advantageous position. If smaller area within the large tract is already developed and suitable for building purposes and have in its vicinity roads, drainage, electricity, communications etc., then the principle of deduction simply for the reason that it is part of the large tract acquired, may not be justified.
The proposition that large area of land cannot possibly fetch a price at the same rate at which small plots are sold is not absolute proposition and in given circumstances it would be permissible to take into account the price fetched by the small plots of land. If the larger tract of land because of advantageous position is capable of being used for the purpose for which the smaller plots are used and is also situated in a developed area with little or no requirement of further development, the principle of deduction of the value for purpose of comparison is not warranted.
In the instant case it has been satisfactorily shown on the evidence on record that the land has facilities of road and other amenities and is adjacent to a developed colony and in such circumstances it is possible to utilise the entire area in question as house sites. In respect of the land acquired for the road, the same advantages are available and it did not require any further development. Therefore, no deduction could be made on ground, that large tract of land is required.'
12. Now coming to the question of compensation in respect of the structures standing on the land in question. It is not in dispute that on acquired land belonging to Geeta Nand, Prem Singh (who died during the pendency of the appeal, whose LRs are Smt. Gulabi Devi and others in R.F.A. No 72 of 1988) and of Lalit Kumar etc. structures were standing. In order to support their respective claims, these appellants have examined P.W.-4 Tara Chand Tandon, retired Superintending Engineer, as an expert, who had submmitted his assessment report alongwtth details of reproduction cost, measurement statement, abstract of cost, material statement as well as of extra carriage as well as building plans in case of each of the appellants. To these details, reference will be made hereinafter. On the contrary in order to controvert this evidence examined on behalf of the appellants, respondents have examined R. W.-2 N.R. Verma, Assistant Engineer, National Highway, H.P.P.W.D. Panarsa, who has produced on record statement wherein only the costs have been worked out viz., Ex. R.W.-2 and general abstract of cost Ex. R.W.-3. There are no details of the measurement reproduction cost or othewise. Similarly, he has not produced on record anything to show the nature of giving details of the structures standing on the land under acquisition.
13. In Order to support his opinion, if given by an expert, there has to be some basis for arriving at such conclusions one of the recognised methods is to justify such opinion with reasons and grounds.
14. In case of Geeta Nand-P. W.-4 has placed and proved on record Ex. P.W.-4/1 cost of structures, Ex. P.W.-4/2 at Rs. 89,066/- Ex. P.W.-4/3 details of materials and extra carriage work, Ex. P.W.-4/4 and Ex. P.W.-4/5 abstract of cost, Ex. P-6 and Ex. P-7 details of measurement and P. W.-8 plan of the structures. Similarly, in respectsof original appellant Prem Singh Ex. P.W.-15 is the report, Ex. P-16 is material statement, Ex. P-17 is the abstract of cost, Ex. P.W.-4/18 is details of measurement and Ex.P.W.-4/19 is the house plan of the structures standing on the land acquired which belongs to deceased-Prem Singh. In case of Lalit Kumar, Ex. P.W.-4/9 is the report, Ex. P.W.-4/10 is the estimated cost, Ex. P. W.-4/11 is the abstract of cost, Ex. P.W.-4/12 is details of measurement, Ex. P.W.-4/13 is the material statement of extra carriage and Ex. P.W.-4/14 is the building plan of structures standing on the land belonging to Lalit Kumar. In the context of Ex. P.W.-4/2, Ex. P.W.-4/15 and Ex. P.W.-4/10, the estimated cost prepared in case of Seeta Nand, late Shri Prem Singh and Lalit Kumar respectively by Tara Chand Tandon (P.W.-4), it may be appropriate to mention here that reproduction cost has ben worked out after allowing depreciation keeping in' view the age and life of the structures, deducting 6% amount on account of salvage material etc., (in all these three reports 15% compulsory acquisition charges have also been added which have to be assessed in accordance with law i.e. provisions of Land Acquisition Act as they stand as per amended provisions and not as assessed in these three reports). In fact, when a reference is made to the statement of R.W.-2, expert examined by the State, it appears that by no stretch of imagination P.W.-2 can be said to be an expert and there is no reasoning much less ground made out in the statement of such expert. In these circumstances, we have no hesitation in accepting the assessment made by Tara Chand Tandan (P.W.-4) and further to discard the evidence of P.W.-3 as well as the assessment made by him vide Ex. R.W.-2 and Ex. R.W.-3. It may further be submitted that in the instant case it may be safely held that the evidence adduced by the appellants for the purpose of assessment of the valuation has remained un-rebutted for all intents and purposes and we have no hesitation in accepting the same and further directing that the appellants are entitled to the compensation as assessed by P.W.-4 which is as under:--
(a) R.F.A. 72 of 1988 Smt. Gulabi etc. Rupees 64,148/- v. State.
(b) R.F.A. 6 of 1988 Lalit Kumar etc. Rupees 99,320/- v. State.
(c) R.F.A. 44 of 1988 Geeta Nand Sharma v. State Rs. 89,066/-.
In addition to this amount these appellants are also entitled to solatium at the rate of 30% and interest as admissible under the provisions of Section 23 of the Land Acquisition Act. Out of this amount, the compensation awarded by the Land Acquisition Collector is liable to be deducted and for the balance amount all the appellants are entitled. For coming to this conclusion another ground is that there is no legal evidence which can be firstly said to have been produced by the State in order to justify the compensation awarded by the Land Acquisition Collector for structures and secondly the so called evidence of R.W.-2 is of no consequence as it does not advance the case of the State to support the compensation awarded for such structures.
15. As a result of the aforesaid discussion, it is held that
(a) The appellants are entitled to the compensation at the rate of Rs. 4,000/- per biswa uniformally for all classes of land irrespective of its classification or quality;
(b) (i) Geeta Nand is entitled to Rs. 89,066/-less amount awarded by the Land Acquisition Collector for structures;
(ii) Gulabi Devi and othes are held entitled to compensation of Rs.64,148/- less compensation awarded for structures by the Land Acquisition Collector;
(iii) Lalit Kumar and others are entitled for Rs. 99,320/-, less compensation awarded by the Land Acquisition Collector for their structures;
(c) The appellants are also entitled to solatium at the rate of 30% as well as interest under Section 23 of the Land Acquisition Act on the enhanced amount of compensation as ordered in this award;
(d) The respondents are directed to calculate the amount of compensation in terms of this judgment as well as to deposit the same with the District Judge, Mandi or pay the same to the concerned claimant within a period of 6 months of the receipt of the copy of this judgment. This direction shall be carried out in its letter and spirit by the respondents so that the appellants are not dragged to another round of litigation by filing execution etc.
Cost on the parties.