Himachal Pradesh High Court
State Of Hp And Others vs Yoginder Chand on 22 July, 2026
Author: Sushil Kukreja
Bench: Sushil Kukreja
( 2026:HHC:30237 )
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RFA No.454 of 2018
.
Reserved on: 29.06.2026
Date of decision: 22.07.2026
Date of uploading on website: 22.07. 2026
_____________________________________________________
State of HP and others
....Appellants
Versus
of
Yoginder Chand
...Respondent
_____________________________________________________
Coram
rt
Hon'ble Mr. Justice Sushil Kukreja, Judge
1
Whether approved for reporting?
For the appellants: Mr. Balwinder Singh Ballu, Deputy
Advocate General.
For the respondent: Mr. H.C. Sharma, Advocate.
Sushil Kukreja, Judge
The instant appeal has been preferred under Section
54 of the Land Acquisition Act, 1894 (for short, ‘the Act’), by the
appellants/ State against the award dated 27.04.2018, passed by
the learned Additional District Judge-II, Shimla, HP (for short ‘the
Reference Court’), whereby the respondent (hereinafter referred to
as the petitioner) was held entitled to enhanced compensation @
Rs.50,000/- per biswa, irrespective of the classification of the
acquired land alongwith all statutory benefits, with the prayer that
1
Whether reporters of Local Papers may be allowed to see the judgment?
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the impugned award may be set aside and the reference petition
be ordered to be dismissed.
.
2. The facts of the case, in brief, are that a notification
under Section 4 of the Act was issued by the Government of
Himachal Pradesh on 30.07.2008 for acquisition of the land of the
petitioner comprised in Khasra No.23, measuring 0-20-81
of
hectares, situated in Village Annu, Tehsil Theog, District Shimla,
for the purpose of construction of Narail- Kelvi- Dharampur road,
rt
which was published in Rajpatra on 08.08.2008 as well as in two
newspapers, i.e. Dainik Bhaskar and Dainik Tribune on
09.08.2008. Notification under Sections 6 & 7 of the Act was
published in Rajpatra on 16.05.2009 and in two newspapers, i.e.
Hindustan Times and Dainik Jagran on 20.05.2009 and public
notice in locality on 29.06.2009 and after detailed inquiry, the
Collector announced Award No.44/2011, dated 18.08.2011,
whereby the market value of the land of the petitioner under
acquisition was determined @ Rs.16,220.34 per biswa for Bakhal
Awal and a total compensation of Rs.13,63,845/- was awarded in
favour of the petitioner.
3. Feeling aggrieved and dissatisfied with the aforesaid
award dated 18.08.2011, the petitioner preferred a reference
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petition under Section 18 of the Land Acquisition Act, with a prayer
that the amount of compensation awarded by the Land Acquisition
.
Collector may be enhanced.
4. The learned Reference Court, vide impugned award
dated 27.04.2018, allowed the reference petition and the petitioner
was held entitled to enhanced compensation at the rate of
of
Rs.50,000/- per biswa, irrespective of the classification of the
acquired land, alongwith solatium, additional compensation,
rt
interest on the enhanced amount of compensation etc. Hence, the
appellants/State preferred the instant appeal with a prayer to set-
aside the impugned award dated 27.04.2018, passed by the
learned Reference Court.
5. I have heard learned Deputy Advocate General
Counsel for the appellants as well learned counsel for the
respondent and have also carefully gone through the records.
6. Learned Deputy Advocate contended that the Land
Acquisition Collector had assessed the market value of the
acquired land on the basis of one year average, however, the
learned Reference Court has arrived at an erroneous conclusion
about the market value of the land, without any basis. He further
contended that the learned Reference Court has also erred in not
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allowing the standard deduction between 33% to 53% on the
awarded amount as the land in question was acquired for rural
.
connectivity road as such he submitted that the instant appeal
deserves to be allowed and impugned award passed by the
learned Reference Court be set aside.
7. Conversely, learned counsel for the respondent
of
supported the impugned award by contending that the learned
Reference Court had rightly assessed the market value of the
rt
acquired land.
8. As per the settled principle of law, compensation for
the land acquired has to be determined at market value. Market
value is the price that a willing purchaser would pay to a willing
seller for the property having due regard to its existing condition
with all its existing advantages and its potential possibilities when
led out in most advantageous manner excluding any advantage
due to carrying out of the scheme for which the property is
compulsorily acquired. The determination of market value is the
prediction of an economic event viz. a price outcome of
hypothetical sale expressed in terms of probabilities. For
ascertaining the market value of the land, the potentiality of the
acquired land should also be taken into consideration. Potentiality
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means capacity or possibility for changing or developing into state
of actuality.
.
9. In Mehta Ravindrarai Ajitrai (deceased) through his
heirs and LRs & others vs. State of Gujarat (1989) 4 SCC 250,
the Hon’ble Supreme Court held that the market value of a
property for the purpose of Section 23 of the Act is the price at
of
which the property changes hands from a willing seller to a willing
purchaser, but not too anxious a buyer, dealing at arms length.
rt
The relevant portion of the aforesaid judgment reads as under:
“4. ……….The market value of a piece of property for
purpose of Section 23 of the Land Acquisition Act is stated
to be the price at which the property changes hands froma willing seller to a willing, but not too anxious a buyer,
dealing at arms length. Prices fetched for similar lands
with similar advantages and potentialities under bona fide
transactions of sale at or about the time of the preliminarynotification are the usual and, indeed the best, evidences
of market value.”
10. In Atma Singh & others vs. State of Haryana &
another (2008) 2 SCC 568, the Hon’ble Supreme Court held that
the market value is the price that a willing purchaser would pay to
a willing seller for the property having due regard to its existing
conditions with all its existing advantages and its potential
possibilities when led out in most advantages manner, excluding
any advantage due to carrying out of the scheme for which the
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property is compulsorily acquired. In considering market value,
disinclination of the vendor to part with his land and the urgent
.
necessity of the purchaser to buy should be disregarded. The
question whether a land has potential value or not, is primarily one
of the facts depending upon its condition, situation, user to which it
is put or is reasonably capable of being put and proximity to
of
residential, commercial or industrial areas or institutions. The
existing amenities like, water, electricity, possibility of their further
rt
extension, whether near about town is developing or has prospect
of development have to be taken into consideration. The relevant
portion of the aforesaid judgment reads as under:
“4. ……The expression “market value” has been the
subject-matter of consideration by this Court in several
cases. The market value is the price that a willingpurchaser would pay to a willing seller for the property
having due regard to its existing condition with all itsexisting advantages and its potential possibilities when led
out in most advantageous manner excluding any
advantage due to carrying out of the scheme for which theproperty is compulsorily acquired. In considering market
value disinclination of the vendor to part with his land and
the urgent necessity of the purchaser to buy should be
disregarded. The guiding star would be the conduct of
hypothetical willing vendor who would offer the land and a
purchaser in normal human conduct would be willing to buy
as a prudent purchaser in normal human conduct would be
willing to buy as a prudent man in normal market
conditions but not an anxious dealing at arm’s length nor
façade of sale nor fictitious sale brought about in quick
succession or otherwise to inflate the market value.
5. For ascertaining the market value of the land, the
potentiality of the acquired land should also be taken into
consideration. Potentiality means capacity or possibility for::: Downloaded on – 22/07/2026 20:34:09 :::CIS
7 ( 2026:HHC:30237 )
changing or developing into state of actuality. It is well
settled that market value of a property has to be
determined having due regard to its existing condition with
all its existing advantages and its potential possibility when
.
led out in its most advantageous manner. The question
whether a land has potential value or not, is primarily one
of fact depending upon its condition, situation, user to
which it is put or is reasonably capable of being put and
proximity to residential, commercial or industrial areas or
institutions. The existing amenities like water, electricity,
possibility of their further extension, whether near about
town is developing or has prospect of development have to
of
be taken into consideration.”
11. For ascertaining market value of the acquired land, the
Court can no doubt rely upon such sale transactions, which would
rt
offer a reasonable basis to fix the price, for which purpose, a sale
transaction relating to a smaller parcel of land can be considered
for the purpose of assessing the market value in respect of a large
tract of land, after making appropriate deductions such as for
development of land, for providing space for roads, sewers, drains,
expenses involved in formation of a layout, lump- sum payments,
as well as for the waiting period required for selling the sites that
would be formed and other expenses involved therein, but before
doing so, the evidentiary value of such a sale deed is required to
be carefully scrutinized. As held in the case of Land Acquisition
Officer vs. Nookala Rajamallu reported as (2003) 12 SCC 334,
in order to adopt the price reflected in the sale deed, the following
conditions are required to be met:-
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“9. It can be broadly stated that the element of speculation
is reduced to a minimum if the underlying principles of
fixation of market value with reference to comparable sales
are made:
.
(i) when sale is within a reasonable time of the date of
notification under Section 4(1);
(ii) it should be a bona fide transaction;
(iii) it should be of the land acquired or of the land
adjacent to the land acquired; andof
(iv) it should possess similar advantages.
10. It is only when these factors are present, it can merit a
consideration as a comparable case.”
rt
12. In Union of India vs. Pramod Gupta (dead) by LRs
& others, 2005 (12) SCC 1, the Hon’ble Supreme Court held that
the best method, as is well-known, would be the amount which a
willing purchaser would pay to the owner of the land. In the
absence of any direct evidence, the Court, however, may take
recourse to various other known methods. Evidence admissible
therefor inter alia would be the sale deeds, judgments and awards
passed in respect of acquisitions of lands made in the same village
and/or neighboring villages. Such a judgment/award in the
absence of any other evidence like deed of sale, report of the
expert and other relevant evidence would have only evidentiary
value. The relevant portion of the aforesaid judgment reads as
under:
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“24 While determining the amount of compensation
payable in respect of the lands acquired by the State, the
market value therefor indisputably has to be ascertained.
There exist different modes therefor.
.
25. The best method, as is well known, would be the
amount which a willing purchaser would pay to the owner
of the land. In absence of any direct evidence, the court,
however, may take recourse to various other known
methods. Evidences admissible therefor inter alia would
be judgments and awards passed in respect of
acquisitions of lands made in the same village and/or
neighboring villages. Such a judgment and award, in the
of
absence of any other evidence like the deed of sale, report
of the expert and other relevant evidence would have only
evidentiary value.”
13. In support of his case, the petitioner had examined
rt
PW-1 Kumari Veena Negi, Patwari, who proved on record the copy
of notification under Section 4 of the Act as Ext. PW1/A, copy of
notification under Sections 6 & 7 of the Act as Ext. PW1/B, copy of
award statement Ext. PW1/C and copy of award dated 18.08.2011
Ext. PW1/D. Petitioner-Yoginder Chand, while appearing in the
witness-box as PW-2, tendered in evidence his affidavit Ext.PW2/A
and one year average w.e.f. 01.08.2007 to 31.08.2008 of Village
Shalli Teer as Ext. PW2/B. PW-3 Mohan Lal deposed that he had
purchased land in Village Shalli Teer for Rs.1,00,000/- from one
Hira Singh and placed on record copy of sale deed Ext. PW3/A.
14. On the other hand, the respondents examined two
witnesses. RW-1 Veena Negi, Patwari, who had placed on record
copy of approved rate Ext. RW1/A, copy of notice dated
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27.11.2011 Ext. RW1/B, copy of notice under Section 12(2) of the
Act Ext. RW1/C. RW-2 Shiv Vardan Gupta, Junior Engineer, PWD
.
Section Shilaroo, tendered in evidence his affidavit Ext. RW2/A,
wherein he stated that adequate compensation, alongwith all
statutory benefits stood already paid to the petitioner. He further
stated that the market value worked out in this case was
of
reasonable and the Land Acquisition Collector had also given 30%
solatium market value of the land apart from other benefits.
rt
15. The onus is upon the petitioner to prove the true and
correct market value of the land at the time of the issuance of the
notification under Section 4 of the Act. The petitioner is expected
to lead cogent and satisfactory evidence in support of his claim. In
Special Land Acquisition Officer vs. Karigowda & others,
(2010) 5 SCC 708, it has been held that the onus to prove
entitlement to receive higher compensation is upon the claimants
but it cannot be said that there is no onus whatsoever upon the
State in such reference proceedings. The court cannot lose sight
of the fact and clear position of documents, that obligation to pay
fair compensation is on the State in its absolute terms. The
relevant portion of the aforesaid judgment reads as under:
“29. It is a settled principle of law that the onus to prove
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11 ( 2026:HHC:30237 )entitlement to receive higher compensation is upon the
claimants. In Basant Kumar v. Union of India [(1996) 11
SCC 542] this Court held that the claimants are expected
to lead cogent and proper evidence in support of their.
claim. Onus primarily is on the claimants, which they can
discharge while placing and proving on record sale
instances and/or such other evidences as they deem
proper, keeping in mind the method of computation forawarding of compensation which they rely upon. In this
very case, this Court stated the principles of awarding
compensation and placed the matter beyond ambiguity,
while also capsulating the factors regulating the discretionof
of the Court while awarding the compensation. This
principle was reiterated by this Court even in Gafar v.
Moradabad Development Authority [(2007) 7 SCC 614]
and the Court held as under: (SCC p.620, para 12)
rt
“12. As held by this Court in various decisions, the
burden is on the claimants to establish that the
amounts awarded to them by the Land AcquisitionOfficer are inadequate and that they are entitled to
more. That burden had to be discharged by the
claimants and only if the initial burden in that behalf
was discharged, the burden shifted to the State tojustify the award.”
Thus, the onus being primarily upon the claimants, they
are expected to lead evidence to revert the same, if they
so desire. In other words, it cannot be said that there is no
onus whatsoever upon the State in such reference
proceedings. The court cannot lose sight of the facts and
clear position of documents, that obligation to pay fair
compensation is on the State in its absolute terms. Every
case has to be examined on its own facts and the courts
are expected to scrutinise the evidence led by the parties
in such proceedings.”
16. In the instant case,the perusal of the impugned award
shows that the reference court has assessed the market value of
the land under acquisition @ Rs.50,000/- per biswa on the basis
of the award passed in Land Reference No.13-S/4 of 2016/2010,
titled as Kanshi Ram Vs. State of HP and others. However, in the
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opinion of this court,in the absence of any cogent and satisfactory
evidence on record, the market value of the land under acquisition
.
could not have been assessed on the basis of the aforesaid award
as the land in the case of Kanshi Ram is situated in Village
Kanchhi, whereas, in the present case, the land is situated in
Village Annu. Moreover, the said award has been set-aside by this
of
court in RFA No. No.382 of 2018.
17. Now, the question which arises for consideration before
rt
this Court, is as to how the market value of the land in the present
case is to be assessed in view of the evidence available on record.
Admittedly no sale transaction had taken place in Village Annu one
year prior to the last date of the publication of notification under
Section 4 of the Act as such one Year Average Market Value of the
adjoining Mauza Jungle Shalli Teer was procured by the filed staff
and the same was sent to the District Collector, Shimla for
approval. The District Collector approved the same, which is
reproduced as under:-
Classification of land Rate per biswa
1 Kiar Doem. Rs.20,974.58
2. Bakhal Abbal Rs.16220.34
3. Bakhal Doem Rs.10,347.00
4. Karyali Abbal Rs.8,669.49
5. Karyalki Doem Rs.6,991.53
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6. Banjar Jaded Rs.3,355.93
7. Banjar Kadeem Rs.1,677.97
8 Ghasni and Bani Rs.838.98
.
18. However, the Land Acquisition Collector had
determined the market value of the land under acquisition
classification wise i.e. @ Rs.16,220.34 per biswa for Bakhal Abbal.
19. It is also a settled law that where the entire area is
of
similarly situated, the value of the land under acquisition is to be
assessed as a single unit irrespective of its classification and
rt
nature ignoring the purpose to which it was being put prior to the
acquisition, as well as to the one it is likely to be put thereafter. In
Gulabi & etc. vs. State of H.P., AIR 1998 HP 9, it has been held
as under:-
“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 theland 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 islikely 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 ac-
cordingly. In taking this view, we are guided by the judgment
of the Hon”ble Apex Court reported in Bhagwathula
Samanna and others Vs. Special Tahsildar and Land Acqui-
sition Officer, Visakhapatnam Municipality, and the relevant
abstracts from the said judgment are as under (paras 7, 11,
13):–
“In awarding compensation in acquisition proceed-
ings, the Court has necessarily to determine the
market value of the land as on the date of the rele-
vant Notification. It is useful to consider the value::: Downloaded on – 22/07/2026 20:34:09 :::CIS
14 ( 2026:HHC:30237 )paid for similar land at the material time under gen-
uine 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 re-
mote locality. By comparing the price shown in the
transactions all variables have to be taken into con-
sideration. The transaction in regard to smaller prop-
erty cannot, therefore, be taken as a real basis forof
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, gen-
erally a deduction is given taking into consideration
the expenses required for development of the larger
rt
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. Inapplying 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 de-
veloped having all amenities and situated in an ad-
vantageous position. If smaller area within the largetract 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 thelarge tract acquired, may not be justified.
The proposition that large area of land cannot possi-
bly fetch a price at the same rate at which small plots
are sold is not absolute proposition and in given cir-
cumstances it would be permissible to take into ac-
count the price fetched by the small plots of land. If
the larger tract of land because of advantageous po-
sition 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.
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15 ( 2026:HHC:30237 )
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 devel-
oped colony and in such circumstances it is possible.
to utilize 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 couldbe made on ground, that large tract of land is re-
quired.”
20. In Land Acquisition Officer vs. L Kamalamma
of
(1998) 2 SCC 385, H.P. Housing Board vs. Ram Lal & others
2003(3) Sim.L.C. 64, Executive Engineer & Anr. Vs. Dilla Ram
rt
Latest HLJ 2008 (HP) 1007), it was held that when the entire land
acquired belongs to one block, classification of the same into
different categories is not reasonable. In case acquired land is to
be used/developed as a single unit for a purpose having no
relevancy with quality of land, the classification of land completely
loses its significance.
21. A co-ordinate bench of this Court in Dinesh Chhetry v.
State of H.P. and others, RFA No.156 of 2003, and connected
matters, decided on 20.8.2007, has uniformly awarded the highest
amount of compensation determined by the Collector, with regard
to all categories of acquired land. In fact, the Court observed as
under:
“The learned Advocate General submitted that keeping
in view the ratio of law laid down by this Court in LAC,::: Downloaded on – 22/07/2026 20:34:09 :::CIS
16 ( 2026:HHC:30237 )Solan and another vs. Bhoop Ram, reported in 1997 (2)
Sim.L.C. 229, the highest amount of compensation
awarded by the Collector should be uniformly applied to
all the landowners whose land stand acquired in terms of.
the awards in question and are subject matter of the
present appeals regardless of classification of the land
as the purpose of acquisition is same and similar.
Therefore, according to him all the claimants in thepresent appeal whose land has been acquired for the
construction of Kumarhatti – Oachghat road should be
awarded Rs.1,33,333.20 or say Rs.1,33,330.00 per
bigha. His submission is based on the fact that there isof
enough evidence on record to show that the acquired
land in different villages are having the same advantage
and potentiality of increase in value due to its location in
and around the areas where the land is put to
commercial use.
rtIn Bhoop Ram (supra), this Court has held as
under:-
“The Land Acquisition Collector and the District
Judge have determined the market value at a
lesser rate for the acquired land, which was
classified as Bangar Doem, Bangar Kadim,
Ghasni, Charand and Gair Mumkin but in our viewthe classification of acquired land for the
agricultural purpose is not relevant looking to the
common purpose of acquisition for the
construction of road and uniform rate of Rs.40 persq. metre or Rs.30,000/- per Bigha should be
awarded irrespective of the classification of the
acquired land.”
The aforesaid judgment has been consistently
followed by the Court and in RFA No.2 of 1995, titled
Phul Singh vs. LAC, this Court has held that if the and
has potential for setting up of industry, the whole of it,
irrespective of the kind and class of the land can
legitimately presumed to be same market value.
In my view, the submission of the learned
Advocate General is extremely fair and totally in
consonance with the principles of law laid down by the
Apex Court.
Perusal of the some of the award shows that the
Court below has already held that even if one category of
the land is better than the other category for the
agricultural purposes, however, in view of the probable
further use of the land for the public purpose, the land of
different categories would be deemed to be having
similar potentiality and as such similar rate is required to
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be awarded uniformly irrespective of the category of
land. In these cases, I am in agreement with the view
taken by the Court below and do not find any infirmity in
the decision so arrived. The amount offered by the
.
Collector for the best value of the land i.e. Rs.1,33,330/-,
therefore, is fair. Needless to add that I have not gone
into the various exhibited sale deeds for determining the
just, fair and reasonable market value of the acquired
land in view of the submission made by the learned
counsel for the parties at the Bar.”
22. In the case on hand, as discussed above, no sale
of
transaction had taken place in Village Annu one year prior to the
last date of the publication of notification under Section 4 of the
rt
Act. Perusal of the reocd reveals that the acquired land is situated
near Dharampur-Kelvi having all the facilities like school,
dispensary and other offices and having great potential for
agriculture and horticulture. In such circumstances, it becomes
clear that acquired land was having greater market value than the
one, as determined by the Land Acquisition Collector at the rate of
Rs.16,220.34 per biswa. As per the rates approved by the District
Collector, Shimla, the highest rate of the land acquired at the time
of issuance of notification under Section 4 of the Act as on
30.07.2008 was Rs.20,974.58 per biswa as per the One Year
Average Market Value of the adjoining Mauza Jungle Shalli Teer.
23. The perusal of the record reveals that the land has
been acquired as the single unit for the public purpose, i.e., for the
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18 ( 2026:HHC:30237 )
construction of Narail-Kayartoo-Dharampur Road. Therefore, in
view of the aforesaid decision rendered by a co-ordinate bench of
.
this court, in Dinesh Chhetry’s case (supra) highest amount
assessed by the District Collector in the sum of Rs.20,974.58/-
per biswa for the best category of land ought to have been granted
to the petitioner by the Land Acquisition Collector irrespective of its
of
classification. Hence, the market value of the land is determined
as Rs.20,974.58 per biswa irrespective of its classification .
rt
24. The learned counsel for the respondent/petitioner next
contended that the possession of the land was taken by the
appellants-State in the year 1988-89 but no additional interest, as
damages for the period from the date of dispossession till the date
of issuance of notification under Section 4 of the Act has been
granted. According to him, respondent need not file separate
cross-objections, as Order 41 Rule 33 Civil Procedure Code gives
ample power to this Court to do complete justice between the
parties .
25. Before examining the entitlement of the petitioner to the
grant of compensation for the period w.e.f. taking-over of the
possession of the land till the issuance of the notification under
Section 4 of the Act, the question which arises for consideration
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19 ( 2026:HHC:30237 )
before this court in the instant case is as to whether the exercise
of the discretionary power given under Order 41, Rule 33 can be
.
invoked and exercised by this court for granting damages to the
petitioner for the period with effect from the date of dispossession
till the date of issuance of notification under Section 4 of the Act .
26. Order XLI, Rule 33 of Code of Civil Procedure reads as
of
under:-
“O.XLI, R.33 – Power of Court of Appeal- The Appellate
rt
Court shall have power to pass any decree and make any
order which ought to have been passed or made and topass or make such further or other decree or order as the
case may require, and this power may be exercised by the
Court notwithstanding that the appeal is as to part only of
the decree and may be exercised in favour of all or any of
the respondents or parties, although such respondents orparties may not have filed any appeal or objection and may,
where there have been decrees in cross suits or where two
or more decrees are, passed in one suit, be exercised in
respect of all or any of the decrees, although an appeal maynot have been filed against such decrees:
Provided that the Appellate Court shall not make any
order under Section 35A, in pursuance of any objection on
which the Court from whose decree the appeal is preferred
has omitted or refused to make such order.”
27. The scope of the above provision has been examined by
the Hon’ble Supreme Court in a catena of judgements. In Nirmala
Bala Ghose and another v. Balai Chand Ghose, AIR 1965 SC 1874,
Hon’ble Supreme Court observed that aforesaid Rule is primarily
intended to confer power upon the appellate court to do justice by
granting relief to a party who has not appealed, when refusing to
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20 ( 2026:HHC:30237 )
do so, would result in making inconsistent, contradictory or
unworkable orders. Relevant paragraph thereof is extracted below:
.
“23…..When a party allows a decree of the Court of First
Instance to become final, by not appealing against the
decree, it would not be open to another party to the
litigation, whose rights are otherwise not affected by thedecree, to invoke the powers of the appellate Court under
Order 41 Rule 33, to pass a decree in favour of the party not
appealing so as to give the latter a benefit which he has not
claimed. Order 41 Rule 33 is primarily intended to conferof
power upon the appellate court to do justice by granting
relief to a party who has not appealed, when refusing to do
so, would result in making inconsistent, contradictory or
unworkable orders. We do not think that power under Order
rt
41 Rule 33 of the Civil Procedure Code can be exercised in
this case in favour of the deities.”
28. The issue was subsequently considered by Hon’ble
Supreme Court in K. Muthuswami Gounder v. N. Palaniappa
Gounder, (1998) 7 SCC 327. The relevant portion is extracted
below:
“12. Order 41 Rule 33 enables the appellate court to
pass any decree or order which ought to have been made
and to make such further order or decree as the case may
be in favour of all or any of the parties even though (1) the
appeal is as to part only of the decree; and (ii) such partyor parties may not have filed an appeal. The necessary
condition for exercising the power under the Rule is that
the parties to the proceeding are before the Court and the
question raised properly arises (sic out of) one of the
judgments of the lower Court and in that event, the
appellate Court could consider any objection to any part
of the order or decree of the Court and set it right. We are
fortified in this view by the decision of this Court in Mahant
Dhangir v. Madan Mohan, 1987 Supp. SCC 528. No hard
and fast rule can be laid down as to the circumstances
under which the power can be exercised under Order 41,
Rule 33, Civil Procedure Code and each case must
depend upon its own facts…….”
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29. In Banarsi and others v. Ram Phal, (2003) 9 SCC
.
606, wherein the Hon’ble Supreme Court held as under:-
“14.The learned counsel for the respondent forcefully
argued that even in the absence of appeal preferred by the
plaintiff or cross objection taken by the plaintiff-respondent
the Appellate Court was not powerless to grant the decree
which it has done in exercise of the power conferred byof
Rule 33 of Order 41 of the CPC…………
15. Rule 4 seeks to achieve one of the several objects
sought to be achieved by Rule 33, that is, avoiding a
situation of conflicting decrees coming into existence in the
rt
same suit. The abovesaid provisions confer power of
widest amplitude on the appellate court so as to do
complete justice between the parties and such power isunfettered by consideration of facts like what is the subject
matter of appeal, who has filed the appeal and whether the
appeal is being dismissed, allowed or disposed of by
modifying the judgment appealed against. While
dismissing an appeal and though confirming the impugneddecree, the appellate court may still direct passing of such
decree or making of such order which ought to have been
passed or made by the court below in accordance with the
findings of fact and law arrived at by the court below andwhich it would have done had it been conscious of the
error committed by it and noticed by the Appellate Court.
While allowing the appeal or otherwise interfering with the
decree or order appealed against, the appellate court may
pass or make such further or other, decree or order, as thecase would require being done, consistently with the
findings arrived at by the appellate court. The object
sought to be achieved by conferment of such power on the
appellate court is to avoid inconsistency, inequity,
inequality in reliefs granted to similarly placed parties and
unworkable decree or order coming into existence. The
overriding consideration is achieving the ends of justice.
Wider the power, higher the need for caution and care
while exercising the power. Usually the power under Rule
33 is exercised when the portion of the decree appealed
against or the portion of the decree held liable to be set
aside or interfered by the appellate court is so inseparably
connected with the portion not appealed against or left
untouched that for the reason of the latter portion being left::: Downloaded on – 22/07/2026 20:34:09 :::CIS
22 ( 2026:HHC:30237 )untouched either injustice would result or inconsistent
decrees would follow. The power is subject to at least
three limitations: firstly, the power cannot be exercised to
the prejudice or disadvantage of a person not a party.
before the Court; secondly, a claim given up or lost cannot
be revived; and thirdly, such part of the decree which
essentially ought to have been appealed against or
objected to by a party and which that party has permittedto achieve a finality cannot be reversed to the advantage
of such party. A case where there are two reliefs prayed
for and one is refused while the other one is granted and
the former is not inseparably connected with or necessarilyof
depending on the other, in an appeal against the latter, the
former relief cannot be granted in favour of the respondent
by the appellate court exercising power under Rule 33 of
Order 41.”
30. In a case titled as Pralhad & Ors Vs. State Of
rt
Maharashtra & Anr reported in 2010 (10) SCC 458, the Hon’ble
Supreme Court held as under:-
“17. Now, the only question which remains is whether the
landowners, without filing an appeal before the High Court
from the order of the Reference Court, are entitled to theaforesaid benefit on the basis of their application under
Order 41 Rule 33 of CPC.
18. The provision of Order 41, Rule 33 of CPC is clearly
an enabling provision, whereby the Appellate Court isempowered to pass any decree or make any order which
ought to have been passed or made, and to pass or makesuch further or other decree or order as the case may
require. Therefore, the power is very wide and in this
enabling provision, the crucial words are that theAppellate Court is empowered to pass any Order which
ought to have been made as the case may require. The
expression `Order ought to have been made’ would
obviously mean an Order which justice of the case
requires to be made. This is made clear from the
expression used in the said Rule by saying `the court may
pass such further or other Order as the case may require.’
This expression `case’ would mean the justice of the
case. Of course, this power cannot be exercised ignoring
a legal interdict or a prohibition clamped by law.
19. In fact, the ambit of this provision has come up for
consideration in several decisions of this Court. Commenting
on this power, Mulla (CPC, 15th Edition, pg. 2647)
observed that this Rule is modelled on Order 59, Rule 10
(4) of the Supreme Court of Judicature of::: Downloaded on – 22/07/2026 20:34:09 :::CIS
23 ( 2026:HHC:30237 )England, and Mulla further opined that the purpose of this
rule is to do complete justice between the parties.
20. In Banarsi vs. Ramphal, AIR 2004 SC 1989, this
Court construing the provisions of Order 41 Rule 33 of
.
CPC held that this provision confers powers of the widest
amplitude on the appellate court so as to do complete
justice between the parties. This Court further held that
such power is unfettered by considerations as to what is
the subject matter of appeal or who has filed the appeal or
whether the appeal is being dismissed, allowed or
disposed of while modifying the judgments appealed
against. The learned Judges held that one of the objects
of
in conferring such power is to avoid inconsistency,
inequity and inequality in granting reliefs and the
overriding consideration is achieving the ends of justice.
The learned Judges also held that the power can be
exercised subject to three limitations: firstly, this power
rt
cannot be exercised to the prejudice of a person who is
not a party before the Court; secondly, this power cannot
be exercised in favour of a claim which has been given up
or lost; and thirdly, the power cannot be exercised when
such part of the decree which has been permitted to
become final by a party is reversed to the advantage of
that party. (See para 15 at pg. 1997). It has also been
held by this Court in Samundra Devi and others vs.
Narendra Kaur and others, (2008) 9 SCC 100 (para 21)
that this power under Order 41, Rule 33 of CPC cannot be
exercised ignoring a legal interdict.
21. In the instant case, the right of the landowner to
receive the benefit under section 23(1A) of the Principal
Act is legally permissible in view of the majority decision
in Paripoornan (supra). Therefore, the law declared by
this Court in Paripoornan (supra) is binding on the High
Court under Article 141 of the Constitution and High Court
is bound to follow the same, especially when an
application has been made by the landowner under Order
41 Rule 33 of CPC.”
31. Thus, a conspectus of the above pronouncements
establishes that Order XLI, Rule 33 confers power of widest
amplitude on the appellate Court so as to do complete justice
between the parties. but however, discretion to use such power is
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24 ( 2026:HHC:30237 )
to be exercised judiciously with care and caution. The underlying
object of the provisions of Order 41, Rule 33 would clearly go to
.
show that the Parliament has enacted such a provision with a view
that the court could rise to the occasion and render substantial
justice between the parties even in absence of cross-objections or
appeal. Therefore, in absence of the cross-objections filed by the
of
petitioner, this court can invoke the provisions of Order 41, Rule 33
CPC to grant compensation to the petitioner for the period w.e.f.
rt
taking-over of the possession of the land till the issuance of the
notification under Section 4 of the Act.
32. Now, the question which arises for consideration is as
to whether the petitioner is entitled to additional interest, as
damages for the period with effect from the taking-over of the
possession of the land till the issuance of the notification under
Section 4 of the Act. In the reference petition filed under Section
18 of the Act, the petitioner had averred that his land was not
acquired at the time of the construction of the road in the year
1988-89 when the road was constructed upon his land, but the
possession of the land was taken by the respondents in the year
1988-89. The respondents (appellants herein), in their reply, had
admitted the aforesaid averments made by the petitioner being a
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25 ( 2026:HHC:30237 )
matter of revenue record. Perusal of the record reveals that
petitioner Yoginder Chand, while appearing in the witness-box as
.
PW-2, has categorically deposed that the possession of the land
was taken in the year 1988-89, by constructing the road on the
said road. However, no cross-examination was conducted on
behalf of the State on this aspect. Therefore, in view of the
of
categoric admission made by the appellant/state, it has become
clear that the possession of the land was taken in the year 1988-
rt
89. Admittedly the notification under Section 4 of the Act was
issued on 30.07.2008 and published in State Rajpatra on
08.08.2008.
33. This issue of granting use and occupation charges for
the period w.e.f. taking-over of the possession of the land till the
issuance the notification under Section 4 of the Act is no longer res
integra. In Madishetti Bala Ramul (dead) by LRs vs. Land
Acquisition Officer (2007) 9 SCC 650 Hon’ble Supreme Court
allowed the interest @ 15% per annum on the market value
assessed by the Reference Court on the ground that the land was
utilized for public purpose without acquisition and payment of
compensation for considerable long period. The relevant extract
from the aforesaid judgment is quoted for reference as under:
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26 ( 2026:HHC:30237 )
“9. The short question which, therefore, arises for
consideration is as to whether Section 25 of the Act will
have any application in the fact of the present case. Two.
notifications were issued separately. The second
notification was issued as the first notification did not
survive. Valuation of the market rate for the acquired
land, thus, was required to be determined on the basis
of the notification dated 23.12.1991. The earlier
notification lost its force. If the notification issued on
16.03.1979 is taken into consideration for all purposes,
the subsequent award awarding market value of the
land @ Rs. 65/- per square yard cannot be sustained.
of
As the said market value has been determined having
regard to the notification issued on 23.12.1991,
possession taken over by Respondent in respect of 3
acres 5 guntas of land, pursuant to the said notification
dated 16.03.1979 was in the eye of law, therefore,
rt
illegal. The High Court evidently directed grant of
additional market value @ 12% per annum on the
enhanced market value from the date of the publication
of the notification dated 23.12.1991 as also interest
thereupon from the said date instead and place of
18.05.1979. We generally agree therewith.
15. The Land Acquisition Officer took possession of the land
on the basis of a notification which did not survive.
Respondent could not have continued to hold
possession of land despite abatement of the proceeding
under the 1984 Act. It was directed to be decided by the
High Court upon a reference made by the Collector in
terms of Section 30 of the Act. The State, therefore,
itself realized that its stand in regard to the ownership of
3 acres and 5 guntas of land was not correct. It,
therefore, had to issue another notification having regard
to the provisions contained in the Land Acquisition
(Amendment) Act, 1984. Whereas the High Court may
be correct in interpreting the question of law in view of
the decision of this Court, but the same would not mean
that Appellants would not get anything for being
remaining out of possession from 1979 to 1991.
20. In the peculiar facts and circumstances of the case,
although the proper course for us would have to remand
the matter back to the Collector to determine the amount
of compensation to which the Appellants would be
entitled for being remained out of possession since
1979, we are of the opinion that the interest of justice
would be met if this appeal is disposed of with a
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27 ( 2026:HHC:30237 )
direction that additional interest @ 15% per annum on
the amount awarded in terms of award dated
02.01.1999 for the period 16.03.1979 till 22.12.1991,
should be granted, which, in our opinion, would meet the
.
ends of justice.”
34. In Tahera Khotoon & others vs. Revenue Divisional
Officer/Land Acquisition Officer & others, (2014) 13 SCC 613,
the Hon’ble Supreme Court has held as under:
of
“14. In the instant case, it is not in dispute nor can it be
disputed by either side that the property in dispute was
in possession of the Warangal Municipal Committee. In
fact the said Municipal Committee had developed the
rt
aforesaid land into a part. Since there was a dispute
among the owners of the land with the MunicipalCommittee, the Municipal Committee had sought the
assistance of the State Government to acquire the
property and to hand over the same to the Municipal
Committee for its use and development.
15. It is also not in dispute that the Municipal Committee
was in possession of the aforesaid property right from
1-1-1938 till the Notification was issued by the State
Government on 10-1-1996. Keeping in view theobservations made by this Court in Madeshetti Bala
Ramul (2007 (9) SCC 650), we direct the State
Government to pay rents/damages at the rate of 15%on the compensation awarded from the date the
landowners were dispossessed, namely, from 1-1-1938
till the date of issuance of the preliminary Notificationi.e. 10-1-1996. The calculations shall be made by the
State Government as expeditiously as possible and
disburse the aforesaid amount to the appellants as
early as possible, at any rate, within three months from
the date of receipt of copy of this order.”
35. In Balwan Singh & others vs. Land Acquisition
Collector & another, (2016) 13 SCC 412, the same view was
reiterated by the Hon’ble Supreme Court and a direction was
issued to the acquiring authority to award additional interest by
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28 ( 2026:HHC:30237 )
way of damages from the date when the respondents-claimants
were dispossessed till the date of notification under Section 4 of
.
the Act. Relevant paras of Balwan Singh’s judgment (supra) for
the sake of ready reference are extracted hereunder:
“1. The short issue arising for consideration in this appeal
is whether the appellants are entitled to interest for the
period from the date of dispossession to the date ofof
Notification under Section 4(1) of the Land Acquisition
Act, 1894 (For short ‘the Act’). That issue is no more res
integra. In R.L. Jain Vs. DDA (2004) 4 SCC 79 at para
18, this Court has taken the view that the land owner is
not entitled to interest under the Act. However, it has
rt
been clarified that the land owner will be entitled to get
rent or damages for use and occupation for the periodthe Government retained possession of the property.
2. Noticing the above position, this Court in Madishetti
Bala Ramul Vs. Land Acquisition Officer (2007) 9 SCC
650, took the view that it may not be proper to remand
the matter to the Collector to determine the amount ofcompensation to which the appellants therein would be
entitled for the period during which they remained out of
possession and hence, in the interest of justice, this
Court directed that additional interest at the rate of 15%per annum on the amount awarded by the Land
Acquisition Collector, shall be paid for the periodbetween the date of dispossession and the date of
Notification under Section 4(1) of the Act.
3. The said view was followed by this Court in Tahera
Khatoon Vs. Land Acquisition Officer (2014) 13 SCC
613.
4. Following the above view taken by this Court, these
appeals are disposed of directing the respondents to
award additional interest by way of damages, at the rate
of 15% per annum for the period between 1.7.1984, the
date when the appellants were dispossessed till
2.9.1993, the date of Notification under Section 4(1) of
the Act. Needless to say, that this compensation will be
on the basis of land value fixed by the Reference Court.
The amount as above, shall be calculated and
deposited before the Reference Court within a period of
three months from today.”
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36. In the case on hand, as observed earlier, the
.
possession of the land in question was taken in the year 1988-89,
whereas, the notification qua acquisition under Section 4 of the Act
was issued on 30.07.2008. Hence, in view of the aforesaid
authoritative pronouncements of the law laid down by the Hon’ble
of
Supreme Court on the subject, this Court is of the view that since
the possession of the land in question was taken way-back in year
rt
1988-89, whereas, the notification qua the acquisition under
Section 4 of the Act was issued on 30.07.2008, therefore, the
petitioner is entitled to additional interest, as damages, @ 15% per
annum for the period from the year 1988-89 (the date when the
petitioner was actually dispossessed from the land in question) till
30.07.2008 (the date of issuance of notification of acquisition of
the land in question, under Section 4 of the Act).
37. No other point was urged before me.
38. Hence, in view of what has been discussed
hereinabove, the instant appeal is partly allowed and the
impugned award dated 27.04.2018 is modified to the extent that
the market value of the land is assessed at Rs.20,974.58 per
biswa irrespective of its classification. The petitioner is also entitled
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30 ( 2026:HHC:30237 )
to interest at the rate of 12% per annum on the market value from
the date of notification under Section 4 of the Act till the date of
.
award. In addition to the market value, the petitioner is held
entitled to get solatium or compulsory acquisition charges at the
rate of 30% on such market value as provided under Section 23(2)
of the Act and interest at the rate of 9% per annum from the date
of
of notification under Section 4 of the Act upto one year and
thereafter at the rate of 15% per annum till payment is made, as
rt
provided under Section 28 of the Act. The petitioner is further
entitled to additional interest, as damages, @ 15% per annum for
the period from the year 1988-89 (the date when the petitioner
was actually dispossessed from the land in question) till
30.07.2008 (the date of issuance of notification of acquisition of
the land in question, under Section 4 of the Act).
The appeal stands disposed of, so also the pending
application(s), if any.
(Sushil Kukreja)
July 22, 2026 Judge
(V.Himalvi)
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