Judgment:
ORDER
Arun Kumar Goel, J.
1. This appeal at the instance of the Land Acquisition Collector, Kangra; is directed against the award dated 28-6-1994, passed by learned Addl. District Judge (II), Kangra at Dharmashala. By means of impugned award compensation by the Land Acquisition Collector, Kangra has been enhanced to Rs. 5,000/- per marla in respect of land comprised in Khasra Nos. 94/1 and 164/1, owned by respondents Kehar Singh, Mohar Singh and Harbans Singh, measuring 0-00-46 Hects., Barrani Awal and land comprised in Khasra No. 608/149/1, measuring 0-00-44 Hects., owned by Kehar Singh also Barrani Awal. So far owning the land as aforesaid is concerned, it was not even disputed on behalf of the appellant, when this case taken up today for hearing.
2. Land was acquired for a public purpose, namely Thural-Palampur Road. Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') was initially published in the HP Rajpatra on 30-11-1985. However date to be taken for the purpose of assessment of compensation which is relevant in this case under Section 4 (1) of the Act is 28-1-1987 as it stood after its amendment vide Central Act No. 68 of 1984. For ready reference Section 4(1) of the Act is extracted hereinbelow
'Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company, a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language and the Collector shall cause public notice of the substance or such notification to be given at convenient places in the said locality the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification.'
3. Another fact that needs to be noted here is that two references were filed against the award of the Land Acquisition Collector dated 6-10-1990. Reason for filing of two land references was that two khasra numbers were jointly owned by Kehar Singh, Mohar Singh and Harbans Singh, whereas the other khasra number i.e. 608/149/1 was owned by Kehar Singh exclusively.
4. Persons interested claimed reference, as according to them compensation assessed was not the market value of the land in question, therefore, it was required to be determined by the Court.
5. After putting the parties to notice, recording evidence; and finally examining the case on the basis of the pleadings, as well as oral and documentary evidence produced by the parties, learned Court below held as under:
'21. In the result, the petitioners are entitled to compensation at the rate of Rs. 5,000/- per 0.00.19 Hectares or per one marla. They shall further be entitled to:--
(a) The petitioners shall also be entitled to interest at the rate of 12% per annum under Section 23 (1-A) of the Act from the date of publication of the notification under Section 4 of the Act that is 28-1-1987 to the date of award that is 6-10-1990;
(b) Compulsory acquisition charges at the rate of 30% on the market value assessed above under Section 23 (2) of the Act (solatium already paid shall be adjusted); and
(c) The petitioners shall further be entitled to interest at the rate of 9% per annum from the date of taking possession of the acquired land of the petitioners on 1-1-1975 to 31-12-1975 and at the rate of 15% from 1-1-1976 to the date of payment of compensation, (under Section 28 of the Act as admittedly possession of the acquired land of the petitioners was taken by the respondent on 1-1-1975 that is much prior to the initiation of acquisition proceedings.) (It is made clear that the interest already paid shall be liable to be adjusted.)
22. It is further made clear that the interest shall also be payable on solatium as it forms an integral part of compensation as has been held by the Hon'ble Punjab and Haryana High Court in State of Punjab v. Kailashwati, ). To the similar effect is the view of Hon'ble High Courts of Delhi and Jammu and Kashmir.'
6. In the aforesaid background, learned Advocate General submitted that the compensation assessed is excessive and could not have been enhanced from what was awarded by the Land Acquisition Collector. Per him, the learned Court below fell into error without there being any legally acceptable evidence for enhancing the amount of compensation to Rs. 5,00/- per marla, besides solatium and interest etc. as envisaged under law. All these pleas have been controverted on behalf of the respondents by Mr. Ajay Sharma. According to him, though compensation is inadequate and does not indicate the market value of the land under the Act, still his clients with a view to give quietus to the litigation, were satisfied with the compensation assessed by the learned Addl. District Judge (II), Kangra at Dharamshala.
7. There is one instance of sale of Barrani Awal land in the area, where the land under acquisition is situate. Copy of the sale deed is Ext. PW-5/A. Per this document, 0-00-40 Hectares of land was sold vide sale deed dated 28-1-1985. This was in the same year when notification under Section 4 of the Act was published in the H.P. Government Rajpatra. So far sale deed is concerned, it is per se admissible being a registered document, which is otherwise a public document. For taking this view reliance is being placed on State of Haryana v. Ram Singh, : [2001]3SCR1178 .
8. Thus in my view Court below fell into error when it did not accept the sale consideration of Rs. 20,000/- as recited in the sale deed, simply on the ground that Rs. 10,000/-had been received by the seller from the buyer at home. How and in what manner the money is paid, is a question purely between the seller and buyer. On the basis of this sale deed it is clearly made out that two marlas of land was sold at Rs. 10,000/- per marla within the same year earlier at a gap of about 10 months. This transaction cannot be said to be mala fide. Court, on facts in a given case can record such a finding if evidence is there in view of the above decision of the Supreme Court. That is not the situation in the present case. Since respondents have not filed any cross-appeal/cross objections, therefore, the compensation enhanced by learned Addl. District Judge at the rate of Rs. 5,000/- per marla, besides solatium at the rate of 30% and interest, as well as additional compensation needs to be upheld.
9. Further as per the learned Advocate General, interest could not have been allowed from a date anterior to the date of publication of the notification, which in the present case would be 28-1-1987, as per Section 4 of the Act, (supra). Reason for taking this view is that the process of acquisition of land was commenced after publication of notification under Section 4 of the Act, as in the present case, on and with effect from 28-1-1987.
10. This matter is no more res integra in view of the judgments of the Supreme Court in Special Tahsildar (LA), P.W.D. Schemes v. M.A. Jabbar, : [1995]1SCR180 , Siddappa Vasappa Kuri v. Special Land Acquisition Officer, : AIR2001SC2951 and R. L. Jain (D) by LRs v. DDA, : AIR2004SC1904 . Besides this, a Full Bench decision of this Court is also to the same effect. See Narottam Ram v. Land Acquisition Collector, . Nothing to the contrary has been brought to my notice so as to uphold the impugned award of learned Addl. District Judge on this aspect on behalf of the respondents. On this count the impugned award needs to be modified.
11. Now coming to the plea of limitation urged by learned Advocate General that the reference application was barred by time. Ordinarily, this plea should have found favour with the Court. However, for the reasons to be recorded hereinbelow this plea has no merit.
12. It was not disputed on behalf of the parties that plea of limitation is a mixed question of law and fact. Therefore, foundation was required to be laid in the pleadings and then parties would have joined issue. A perusal of the reply filed by the appellant to application under Section 18 of the Act clearly shows that this plea was never set up as a defence while contesting the claim of the respondents.
13. No other point is urged.
14. In view of the aforesaid discussion this appeal deserves to be partly allowed and it is ordered accordingly. Impugned award is modified in the following terms :--
(a) That the appellant is liable to pay interest on the compensation as assessed by the learned Addl. District Judge (II), Kangra at Dharamsala including the solatium component. The respondents are also entitled for the additional compensation in accordance with law, besides interest but only from the date of publication of notification under Section 4 of the Act i.e. 28-1-1987 and not from a date prior to it and to this limited extent only the impugned award of the learned Addl. District Judge has been modified;
(b) Appellant is directed now to recalculate the amount in question in terms of this judgment and in case there is any excess amount deposited by it, the same shall be released to the appellant with up-to-date proportionate interest on its application. In case there is any deficiency, appellant is directed to deposit the same by or before 31 -10-2004. And on its being deposited the amount with up to date interest will be apportioned amongst the parties as noted hereinabove and will also be released to them on their application.
15. All interim orders passed in this case shall stand vacated forthwith. Parties are directed to bear their own costs.