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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RFA Nos.58 of 2014 a/w RFA No.6 of 2015
Reserved on : 27.03.2024
Decided on : 30.04.2024
RFA No.58 of 2014
Chiter Rekha
.......Appellant
Versus
Land Acquisition Collector & Anr.
…....Respondents
RFA No.6 of 2015
General Manager Northern Railway
.......Appellant
Versus
Chiter Rekha & Anr.
…....Respondents
Coram
The Hon’ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting? YES
RFA No.58 of 2014
For the appellant : Mr. Sanjeev Kuthiala, Senior
Advocate, assisted by Ms.
Ankita, Advocate
For the respondents : Mr. H.S. Rawat, and Mr.
Mohinder Zharaick, Additional
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Advocates General, for
respondent No.1.
Mr. Nand Lal Thakur, Senior
Panel Counsel, for respondent
No.2.
RFA No.6 of 2015
For the appellant : Mr. Nand Lal Thakur, Senior
Panel Counsel.
For the respondents : Mr. Sanjeev Kuthiala, Senior
Advocate, assisted by Ms.
Ankita, Advocate, for
respondent No.1.
Mr. H.S. Rawat, and Mr.
Mohinder Zharaick, Additional
Advocates General, for
respondent No.2.
Virender Singh, Judge
The above-titled appeals, filed under Section 54 of
the Land Acquisition Act (hereinafter referred to as ‘the Act’),
are being disposed of by common judgment, as, both these
appeals have been preferred by the parties, against the award
dated 25.09.2013, passed by the Court of learned Additional
District Judge-II, Una, H.P. (hereinafter referred to as the
‘learned Reference Court), in Reference Petition No.59 of 2009
titled as ‘Chiter Rekha Vs. Land Acquisition Collector
(Railways) Una, HP & Another’.
2. Vide award dated 25.09.2013, the learned
Reference Court has answered the reference petition, filed
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under Section 18 of the Act, by passing the award. The
following relief, to the petitioner in RFA No.58 of 2014, was
given:-
“20. In view of my findings on the above
issues, the petition is allowed and the
petitioner is awarded compensation at the
rate of Rs.900/- per square meter of the
acquired land irrespective of classification of
the land. The petitioner is awarded
interest/additional compensation at the rate
of 12% P.A. on the enhanced amount of
compensation under Section 23(1-A) of the Act
w.e.f. 23.6.2005 till 23.3.2007. Further, the
petitioners are entitled to solatium at the rate
of 30% on the enhanced amount of
compensation. Apart from this, the petitioner
is entitled to interest at the rate of 9 per cent
for one year w.e.f. 23.3.2007 and thereafter
at the rate of 15 per cent per annum till the
amount of compensation is deposited in the
court. Memo of costs be prepared and the files
after due compliance be consigned to record
room.”
3. 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 Reference Court.
4. Brief facts, leading to the filing of the present
appeals, before this Court, may be summed up, as under:-
4.1. The land of petitioner-Chiter Rekha, situated at
Village Andora Lower, Tehsil Amb, District Una, H.P., was
acquired by the respondent, for the purpose of construction of
Nangal-Talwara Railway Line. Notification, under Section 4 of
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the Act, was issued on 23.06.2005, which was given wide
publicity as per mandate of the Act. Thereafter, the provisions
of Sections 6 and 7 of the Act were complied with and
ultimately, the award, under Section 11 of the Act, was
passed vide Award No.9/2006-2007 dated 23.03.2007, by the
Land Acquisition Collector (Railway), Una, District Una, H.P.
4.2 Vide Award No.9 dated 23.03.2007, land was
acquired and Land Acquisition Collector has assessed the
market value of the land. Since, the petitioner was not
satisfied with the market value of the acquired land, as
assessed, by the Land Acquisition Collector, prevailing at the
time of issuance of the notification, under Section 4 of the
Act, as such, the reference, before the Land Acquisition
Collector, was made, under Section 18 of the Act, against the
award, with a prayer to refer the same to the Court of learned
District Judge, Una, H.P.
4.3 According to the petitioner, her land was acquired
by the respondent, vide Award No.9, as referred above.
However, according to her, the amount of compensation was
received by her, under protest.
4.4 According to her, the acquired land is very fertile
and irrigated land, situated near Amb-Gagret Road. The
commercial potentiality of the acquired land has also been
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highlighted, by pleading that the market value of the acquired
land is Rs.50,000/- per marla. The acquired land is also
stated to be situated near Industrial Area, Amb.
5. On the basis of above, a prayer has been made to
enhance the market value of the acquired land, prevailing at
the time of issuance of the notification, under Section 4 of the
Act.
6. This reference petition was entertained by the
learned Reference Court.
7. When put to notice, the respondents have filed
their reply, denying that the petitioner has not filed any
objection, at the time of enquiry, under Section 9 of the Act.
According to them, the petitioner has received an adequate
compensation for the acquired land. However, the factum of
acquisition of the land, as pleaded, by the petitioner, has not
been disputed.
7.1 It is further case of the respondents that the Land
Acquisition Collector has assessed the market value of the
acquired land, after taking into consideration, all relevant
factors, including commercial potentiality of the acquired
land.
8. As such, a prayer has been made to dismiss the
reference petition.
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9. Petitioner has filed the rejoinder to the reply,
denying the preliminary objections, as well as, contents of the
reply, by virtue of which, the reference petition has been
contested by re-asserting that of the reference petition.
10. From the pleadings of the parties, following issues
were framed, by the learned Reference Court, vide order dated
10.08.2011:-
“1. Whether the petitioner is entitled for
enhancement of acquisition amount, as
claimed? OPP
2. Whether the petitioner is estopped by
her act and conduct to file this
reference? OPR
3. Whether the petitioner has been
awarded adequate compensation, as
alleged? OPR
4. Relief.”
11. Thereafter, parties to the lis were directed to
adduce evidence.
12. After closure of the evidence and after hearing
learned counsel for the parties, the learned Reference Court
has answered the reference petition, vide award, as referred
to above.
13. Feeling aggrieved from the said award, petitioner-
Chiter Rekha has filed RFA No.58 of 2014, before this Court,
against the said award, mainly on the ground that, the
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learned Reference Court has not assessed the market value of
the acquired land, prevailing at the time of issuance of the
notification, under Section 4 of the Act. Commercial
potentiality of the acquired land is also stated to have not
been taken into consideration.
13.1 The award has also been assailed, on the ground
that the award is liable to be modified and the petitioner is
entitled for enhancement of the amount of compensation.
13.2 Highlighting the commercial potentiality of the
acquired land, the award has further been assailed, on the
ground that the market value of the acquired land is ought to
have been enhanced, as, the learned Reference Court has
passed the impugned award, on 25.09.2013, under the Act,
whereas, by that time, the President of India has given assent
to the new law namely, Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (hereinafter referred to as the ‘New
Act’). Hence, the amount of compensation, as well as,
payment has been sought to be based upon the New Act.
14. In nutshell, petitioner has sought the relief on the
basis of the New Act, instead of, the Act.
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15. Along with the appeal, application (CMP No.9294
of 2018), under Order XLI Rule 27 read with Section 151 of
CPC, for leading additional evidence, has been moved.
15.1 By virtue of the said application, documents, i.e.
judgment, dated 09.05.2016, passed by this Court, in a
bunch of Regular First Appeals, lead whereof, is RFA No.24 of
2010 titled as ‘Vidya Sagar Vs. Land Acquisition Collector &
Ors.’, Award dated 18.04.2015, passed by the Court of
learned Additional District Judge-II, Una, District Una, H.P.,
in a bunch of reference petitions, lead whereof, is Reference
Petition No.RBT/123/13/2012, titled as ‘Sewati Devi @Savitri
Devi Vs. Land Acquisition Collector & Anr.’, copy of C.D. Form
and the certificate, issued by the Patwari, Patwar Circle,
Andora, have been sought to be placed on record as
additional evidence, on the ground that the above documents
are necessary, for the purpose of doing complete justice, inter
se the parties.
15.2 According to the petitioner, despite all endeavours,
she could not produce these documents. As such, the
documents are prayed to be placed on record, by way of the
said application.
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15.3 Although, this application was filed on
07.09.2018, but, till date, reply to the application has not
been filed.
16. As such, a prayer has been made to allow the
appeal, as well as, the said application.
17. The respondents have also filed RFA No.6 of 2015,
assailing the award, passed by the learned Reference Court,
mainly on the ground that the learned Reference Court has
passed the award, without taking into consideration the oral,
as well as, documentary evidence.
17.1 According to them, the evidence of RW-1 Lal
Chand, Kanungo has not been considered properly, by the
learned Reference Court.
17.2 It is their further case that the learned Reference
Court has enhanced the amount of compensation, which
amounts to an increase of more than 100% and the same has
been done, without taking into consideration any evidence, on
record. No evidence is stated to have been adduced, by the
petitioner, to justify the enhancement of the amount of
compensation.
18. On the basis of above facts, a prayer has been
made to allow the appeal, by setting aside the award.
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19. In order to decide the present appeals, it would be
just and appropriate for this Court to discuss oral, as well as,
documentary evidence, led by the parties, before the learned
Reference Court.
20. After framing of the issues, petitioner has
examined PW-1 Lal Chand, Patwari, who has proved the copy
of settlement Ex.PW1/A. As per record, land bearing Khasra
No.1650, 1651, 1661, 1648, 1649, 928 is abutting to the
boundary of Lower Andora.
20.1 In the cross-examination, this witness has
admitted that Upper Andora and Lower Andora are two
different revenue estates.
21. Narinder Kumar, Patwari stepped into the witness
box as PW-2 and deposed that the boundary line of Village
Lower Andora, as per the record, has been recorded as 338
mts. and Khasra Nos.1295, 1296, 1298, 1297, 1323, 1321,
1324, 1335, 1336, 1339, 1338, 1340 and 1351 are abutting
to the boundary. Across the boundary, the area of Partap
Nagar, Amb is abutting. He has proved the document
Ex.PW2/A.
21.1 In the cross-examination, this witness has
deposed that he is not in a position to tell who are the
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owners, of these khasra numbers, mentioned by him, in his
examination-in-chief.
22. PW-3 Kali Dass has deposed that he is the GPA of
petitioner-Chiter Rekha. In his examination-in-chief, he has
deposed, as per the stand, taken by his wife-Smt. Chiter
Rekha, in the reference petition.
22.1 In the cross-examination, he has deposed that his
land measuring 13 kanal 14 marla was acquired, for the
purpose of laying down broad gauge railway line. This witness
has retired as Naib Tehsildar. He has admitted that the kind
of the acquired land was not banjar kadim, but, according to
him, the same was chahi (irrigated).
23. To rebut this evidence, respondents have
examined RW-1 Lal Chand, Kanungo, who has proved the
copy of notification, under Section 4 of the Act, as Ex.RW1/A,
notification, under Section 6 of the Act, as Ex.RW1/B, Award
No.9 dated 23.03.2007 Ex.RW1/C and chart, under Section
19 of the Act, as Ex.RW1/D. According to him, as per the
record, total 5-35-15 hectares of land was acquired, for
which, a sum of Rs.2,63,78,882/- was paid.
23.1 In the cross-examination, this witness has
admitted that he has not seen the acquired land, nor he is
aware about the fact as to whether the same is irrigated land
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or not. He has feigned his ignorance with regard to the
suggestions, which were put to him, regarding the commercial
potentiality of the acquired land.
24. Apart from this, parties to the lis have also
produced documentary evidence, which is copy of bandobast
Ex.PW1/A, copy of tatima Ex.PW2/A, copy of GPA Ex.PW3/A,
copy of Award No.5/2005-06 Ex.P1, pertaining to the land
situated in Village Kataur Khurd, Tehsil Amb, District Una,
copy of Award No.9/2006-2007 Ex.P2, pertaining to Village
Andora Nichla, Tehsil Amb, District Una, copy of Award
No.13/2006-2007 Ex.P3, pertaining to Village Partap Nagar,
Tehsil Amb, District Una. Ex.P4 is the copy of Award dated
19.10.2011, passed by the Court of learned District Judge,
Una, in a bunch of petitions, lead whereof, Land Reference
Petition No.RBT/41-IV/11/10, titled as ‘Jashwant Singh, son
of Sher Singh Versus Land Acquisition Collector & Another’.
This award pertains to the land situated in the revenue estate
of Village Partap Nagar, Tehsil Amb, District Una. Ex.RW1/A
is the copy of notification, issued under Section 4 of the Act,
Ex.RW1/B is the copy of notification, issued under Section 7
of the Act, Ex.RW1/C is the copy of Award No.9/2006-2007
and Ex.RW1/D is the Form No.19, under Section 18 of the
Act.
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25. This is the entire documentary evidence, which
has been led, by the parties, to the lis.
26. First question, which arises for determination,
before this Court, is qua the applicability of the New Act. The
award, under Section 11 of the Act, was passed on
23.03.2007 and the reference petition, under Section 18 of
the Act, was decided on 25.09.2013, whereas, the New Act
came into force on 01.01.2014, vide S.O. 3729 (E) dated
19.12.2013, published in the Gazette of India Extraordinary,
Part-II, Section 3(ii) No.2839 dated 19.12.2013. Meaning
thereby, even, at the time of decision of the Reference
Petition, by the learned Reference Court, New Act had not
come into force. Section 24 of the New Act is reproduced as
under:-
“24. Land acquisition process under Act
No. 1 of 1894 shall be deemed to have
lapsed in certain cases. –
(1) Notwithstanding anything contained in
this Act, in any case of land acquisition
proceedings initiated under the Land
Acquisition Act, 1894 (1 of 1894), -
(a) Where no award section 11 of the said
Land Acquisition Act has been made, then,
all provisions of this Act relating to the
determination of compensation shall apply;
or
(b) where an award under said section 11
has been made, then such proceedings
shall continue under the provisions of the
said Land Acquisition Act, as if the said
Act has not been repealed.
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(2) Notwithstanding anything contained in sub
-section (1), in case of land acquisition
proceedings initiated under the Land
Acquisition Act, 1894 (1 of 1894), where an
award under the said section 11 has been
made five years or more prior to the
commencement of this Act but the physical
possession of the land has not been taken
or the compensation has not been paid the
said proceedings shall be deemed to have
lapsed and the appropriate Government, if
it so chooses, shall initiate the proceedings
of such land acquisition afresh in
accordance with the provisions of this Act:
Provided that where an award has been
made and compensation in respect of a
majority of land holdings has not been
deposited in the account of the
beneficiaries, then, all beneficiaries
specified in the notification for acquisition
under section 4 of the said Land
Acquisition Act, shall be entitled to
compensation in accordance with the
provisions of this Act.”
27. It is not the case of appellant-Chiter Rekha that
the possession of the land has not been taken, by the
respondents or the compensation has not been paid.
28. The Legislature, in its wisdom, has used the term
‘award’, under Section 11 of the Act, in Section 24 of the New
Act.
29. In view of the above discussions, the arguments,
qua applicability of the New Act, regarding the land acquired,
do not hold water. As such, the same are rejected.
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30. The learned Reference Court, in this case, has
awarded the compensation @Rs.900/- per square meter,
irrespective of the classification of the land, along with
statutory benefits.
31. As per the evidence, adduced by the parties,
before the learned Reference Court, the acquired land is
situated in Lower Andora and according to PW-1 Lal Chand,
Patwari, acquired land is adjacent to Mohal Pratap Nagar,
Tehsil Amb. As per document Ex.PW2/A, the boundary of
Mohal Lower Andora is adjacent to Mohal Pratap Nagar,
Tehsil Amb.
32. In addition to this, the petitioner has also relied
upon documents i.e. Ex.P1, Award No.5/2005-06, pertaining
to Village Kataur Khurd, Tehsil Amb District Una and Ex.P4,
award passed by the learned District Judge, Una, H.P., in a
bunch of reference petitions, lead whereof, is Land Reference
Petition No.RBI 41-IV/11/10, titled as ‘Jashwant Singh Vs.
Land Acquisition Collector & Another’. The subject matter of
the said Reference Petition is the land situated in Mohal
Pratap Nagar, Tehsil Amb and the notification, under Section
4 of the Act, was issued on 23.06.2005.
32.1 The learned District Judge, in the said Reference
Petition, has assessed the market value of the land by relying
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upon document Ex.P4 and thus, awarded a sum of Rs.900/-
per square meter, irrespective of the classification of the land.
33. Along with the appeal, petitioner-Chiter Rekha has
also moved the application, under Order XLI Rule 27, read
with Section 151 of CPC, for proving/placing on record the
following documents:-
i. Judgment of the Coordinate Bench, passed on
09.05.2014, in Regular First Appeal No.77 of
2010, titled as ‘General Manager, Northern
Railway Vs. Kedar Nath and Others’.
By way of the said judgment, the Coordinate
Bench of this Court has decided the bunch of Regular First
Appeals, lead whereof, is RFA No.77 of 2010, titled as
‘General Manager, Northern Railway Vs. Kedar Nath and
Others’. The subject matter of the said case is the land
acquired for construction of railway line from Nangal Dam to
Talwara and the land is situated in Village Kataur Khurd,
Tehsil Amb, District Una. The notification, under Section 4 of
the Act, was issued on 25.02.2005.
ii. Copy of Land Reference RBT No.123/13/2012,
decided on 18.04.2015, by the Court of learned
Additional District Judge-II, Una, District Una,
H.P.
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iii. Photocopy of CD Form.
iv. Certificate, issued by Patwari, Patwar Circle,
Andora.
34. All the aforesaid documents have been sought to
be proved/produced, under Order XLI Rule 27 of CPC. As per
the applicant-petitioner, the said documents are necessary
and required for the purpose of proper adjudication/
determination of the lis, and despite all endeavours, the same
could not be produced earlier, by the applicant, despite due
diligence.
35. Interestingly, the photocopies of all these
documents have been annexed, with the application and the
petitioner has not bothered to place on record the attested
copies of the same. Even, document (Annexure A-2) is the
uncertified copy of the award dated 18.04.2015, passed by
the Court of learned Additional District Judge-II, Una, District
Una, H.P.
35.1 Similarly, documents i.e. Annexure A-3 is the copy
of CD Form and Annexure A-4 is the photocopy of the
certificate, issued by the Patwari, Patwar Circle, Andora.
36. When, the petitioner has produced the
photocopies of abovesaid documents and her application is
totally silent as to how the documents Annexure A-2 to A-4
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are relevant for the just adjudication of this case, in that
eventuality, the assertions, in the application, are too short,
to fulfill the ingredients, as per Order XLI Rule 27 of CPC.
However, judgment dated 09.05.2016, passed by
this Court, in RFA No.77 of 2010, can be taken on record, as,
High Court is the Court of record. Thus, application, bearing
CMP No.9294 of 2018, is disposed of, accordingly
37. Considering the fact that notification, in the case,
decided by the Coordinate Bench, in RFA No.77 of 2010, on
09.05.2016, was issued on 25.02.2005, whereas, in the
present case, notification, under Section 4 of the Act, was
issued on 09.07.2005 and the purpose for acquisition of the
land, in both the cases, was for the construction of Broad
Gauge Railway Line from Nangal to Talwara, as such, market
value of the acquired land is required to be determined, as
per this award. Hence, there is no substance in the appeal,
preferred by the General Manager Northern Railway.
38. Accordingly, the market value of the acquired land
is proved to be Rs.1,000/- per square meter, irrespective of
the kind of the land. In addition to this, the petitioner is also
entitled for all statutory benefits, as per law, which have been
awarded to her, by the learned Reference Court.
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39. In view of the above discussion, appeal bearing
No.RFA No.58 of 2014, titled as ‘Chiter Rekha Versus Land
Acquisition Collector & Another’ is allowed, in the aforesaid
terms, whereas, appeal bearing No.RFA No.6 of 2015, titled as
‘General Manager Northern Railway Versus Chiter Rekha &
Another’ is dismissed and the award, passed by the learned
Reference Court, is modified, accordingly.
40. Pending application(s), if any, shall also stand
disposed of.
41. Record be sent down.
(Virender Singh)
Judge
April 30, 2024
Gaurav Thakur