IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA 1. RFA No. 293 of 2004 alongwith Cross Objection No. 4 of 2005 Reserved on : April 30, 2009 Date of Decision : May 18, 2009 Sh. Nokh Ram and others Appellants Versus State of H.P. and another. Respondents 2. RFA No. 294 of 2004 alongwith Cross Objection No. 34 of 2005 Reserved on : April 30, 2009 Date of Decision : May 18, 2009 Sh. Gosau Ram Appellant Versus State of H.P. and another. Respondents 3. RFA No. 295 of 2004 alongwith Cross Objection No. 35 of 2005 Reserved on : April 30, 2009 Date of Decision : May 18, 2009 Sh. Nokh Ram and others Appellants Versus State of H.P. and another. Respondents 4. RFA No. 300 of 2004 Reserved on : April 30, 2009 Date of Decision : May 18, 2009 Sh. Sant Ram and others Appellants Versus State of H.P. and another. Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. 2 Whether approved for reporting?1 No. For the petitioners : Mr. Ramesh Sharma, Advocate, for the petitioner. For the respondents : Mr. Vivek Thakur, Addl. Advocate General and Mr. Anil Jaswal, Dy. Advocate General for the respondents. Sanjay Karol, J. The present appeals are being disposed of by a common judgment for the reason that the common evidence was led by the claimants and the Court below has passed separate but identical awards. They were heard and taken up together and record of Land Referecne Case No. 39-S/4 of 2000, titled Nokh Ram and others vs. State of H.P. and another, against which Appeal No. 295/2004 has been filed, has been perused. For the public purpose namely construction of Dargi Sohal- Nehra road possession of the petitioners’ land, even as per the Collector’s Award was taken over prior to 1st July, 1993. However, notification dated 28.7.1997, issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) acquiring the land, was published in the H.P. Rajpatra on 13.9.1997. The Collector’s Award No. 13 of 1999, under Section 11 of the Act, was issued on 28.12.1999. The Collector assessed the market value of the acquired land classification/category wise as under: 1 Whether reports of Local Papers may be allowed to see the judgment? 3 Tehsil Name Mauja Nature of land Assessed value per Bigha Sunni Panyali 1. Kiyar Doem Rs. 15,300.00 2. Bakhal Abal Rs. 9,180.00 3. Bakhal Doem Rs. 5,620.00 4. Tikkar Abal Rs. 3,060.00 5. Tikkar Deom Rs. 1,530.00 6. Banjar Rs. 1,530.00 7. Ghasni/Toda Rs. 1,020.00 Aggrieved by the same the claimants filed various Land Reference Petitions seeking enhancement of the compensation. Based on the pleadings of the parties the Court framed the following issues: “1. Whether the compensation paid to the petitioners is not just and proper?...OPP 2. In case issue No.1 is proved in affirmative, to what enhanced compensation the petitioners are entitled?...OPP 3. Relief.” Opportunity to lead evidence was afforded to the parties. It is a matter of record that the claimants examined nine witnesses and State did not lead any evidence except for tendering copy of the sale deed Ext. R1. Appreciating the material on record the Court below rejected the claimants prayer for enhancement of the market value of the acquired land as it found that the sale deeds Ext.P8 and Ext.P9, produced on record by the claimants, could not be relied upon to 4 determine the true market value as they did not pertain to the place of acquisition of the land and also there was nothing on record to show the comparability of the exemplar sale land with the acquired land situated in village Panohi. On the question of damage caused to the petitioners’ land adjoining to the acquired land, the Court found that in the absence of any cogent and convincing evidence/material on record to prove the same no compensation could be awarded. On the question of compensation for the trees existing on the acquired land, based on the evidence led by the parties, except for in one case, the Court below rejected the claimants’ contention as no cogent and reliable material was led by the claimants. In the case of claimant Shri Nokh Ram s/o Shri Seria, in Land Reference No. 39-S/4 of 2000 relying upon the admission made by the State itself, that 17 trees of Khair, Beul and Tunni were in existence on the acquired land, based on the valuation report on record, the Court below assessed compensation of Rs. 8,388/-. However, by referring to and relying upon the decision of this Court in Smt. Gulabi vs. State of H.P., 1998 (1) Shim. L.C. 41, the Court below uniformally applied the rate awarded by the Collector for the best category of land i.e. ‘kiyar don’ which was assessed at Rs. 15,300/- per bigha. Thus the claimants petition was partly allowed and all the claimants were held entitled to the market value 5 @ Rs. 15,300/- per bigha for the acquired land irrespective of its classification or category. While awarding compensation under Section 23(1)(a) of the Act the interest was awarded from the date of award which is 31.5.2004, same in all the cases. A chart showing particulars of all the claimants is as under: Sl. No. Land Reference No. Name of Petitioner(s) Date of Award passed by the District Judge RFA No. 1. 40-S/4 of 2000 Sh. Nokh Ram and others. 31.5.2004 293 of 2004 2. 38-S/4 of 2000 Sh. Gosau Ram 31.5.2004 294 of 2004 3. 39-S/4 of 2000 Sh. Nokh Ram and others. 31.5.2004 295 of 2004 4. 44-S/4 of 2000 Sh. Sant Ram and others 31.5.2004 300 of 2004 Mr. Ramesh Sharma, learned counsel for the appellants has assailed the impugned award for the reason that the Court below erred in not relying upon sale deeds Ext. P-8 and Ext. P-9. Sale deed pertaining to small parcel of land or of adjoining villages can be considered for determining market value of the acquired land particularly when, admittedly there were no sale instances in village Panohi where the acquired land was situate. The Court further misdirected itself by not correctly appreciating the evidence in entirety while rejecting the claim for compensation of trees. Further interest on the enhanced compensation ought to have been awarded w.e.f. 13.9.1997, the date of publication of the 6 notification in the Himachal Pradesh Rajpatra instead of the date of the award as wrongly awarded by the Court below. In support of his contentions he has referred to the following decisions: H.P. Housing Board versus Bharat S. Negi and Ors., Latest HLJ 2004 (2) SC 1245; State of H.P. versus Roop Chand Malhotra and others, Latest HLJ 2003 (2) HP 1260; Land Acquisition Collector versus Puran Ram, Latest HLJ 2008 (1) HP 660; Atma Singh (Dead) through LRs and others versus State of Haryana and another, (2008) 2 SCC 568; Defence Estate Officer versus Faizunnisa and others, (2006) 9 SCC 162. Per contra Mr. Vivek Thakur, learned Additional Advocate General ably assisted by Mr. Anil Jaswal, learned Deputy Advocate General has supported the award for the reasons set out therein. He fairly invited my attention to the ratio of law laid down by the Apex Court in Lila Ghosh versus State of West Bengal, (2004) 9 SCC 337, in terms of which interest ought to have been awarded from the date of publication of the notification under Section 4 of the Act, and not from the date of the award. There is no dispute on the proposition of law that even sale deeds pertaining to small transactions can be considered for determining their compensation. This of course is subject to certain conditions as laid down by the Apex Court in Chimanlal 7 Hargovinddas versus Special Land Acquisition Officer, Poona and another, AIR 1988 SC 1652. It is also not in dispute that awards and sale transactions of adjacent and adjoining village can be considered if however there is evidence to prove the comparability of the exemplar land with that of the acquired land. [Union of India versus Harinder Pal Singh and others, 2005 (12) SCC 564 and Executive Engineer and another versus Dilla Ram, Latest HLJ 2008 (HP) 1007] But this of course can be done only in the case of proven fact that no sale transactions took place in the area where the acquired land is situate. In the present case the Collector has referred to and relied upon the transactions pertaining to village Panyali, apparently for the reason that there was no sale instances or other evidence to prove the market value of the acquired land situate in village Panohi. Petitioner through Shri Harish Kumar (PW-6) has proved on record sale deed Ext.P-8. Three biswas of land was sold for a sum of Rs. 41,000/- on 7.6.1997. This witness has however admitted that on the land three shops stand constructed as it is adjacent to the road. From the evidence of both Shri Harish Kumar (PW-6) and Shri Paras Ram (PW-2) it is evident that the said exemplar land is infact closer to Sunni bazaar whereas the acquired land is situated in a remote village Panohi. Judicial notice can be taken of the fact that headquarter of the Tehsil are located at Sunni. Therefore, the Court 8 below rightly did not consider the said exemplar sale deed for the purposes of determining the true market value of the acquired land. Shri Prem Lal (PW-7) has proved sale deed Ext. P-9 whereby three biswas of land was sold for a sum of Rs. 3000/- on 4.2.1997. This witness has only stated that the exemplar land is nearer to village Panohi. Simply because the aforesaid witnesses have deposed that exemplar land is nearer to village Panohi and far of from village Panyali that by itself would not advance the claimants case as there is no evidence to prove the comparability of the acquired land with that of the exemplar sale land. Regretfully there is no evidence on record to prove the similarity of the potential, use and nature of the two lands. Hence in the absence of any cogent, reliable and convincing material to prove that the market value of the acquired land is higher than what was determined by the collector while awarding compensation, no enhancement can be made as claimed by the appellants herein. It is a settled position of law that land reference petition is like a suit in which the claimants, as plaintiff have to stand on their own legs to prove his case. In this view of the matter judgments referred to and relied upon by the learned counsel for the claimants in Bharat S. Negi (supra), Roop Chand Malhotra (supra), Puran Ram (supra), Atma 9 Singh (Dead) through LRs (supra) and Faizunnisa (supra) are not relevant and have no bearing on the present case. On the quantum of compensation towards trees I am of the considered view that the findings returned by the Court below are based on proper appreciation of complete material and no fault can be found with the same. They are neither perverse nor illegal. Claimant in RFA No. 295 of 2004, filed Civil Writ Petition No. 663/2002 before this Court stating as under: “That the respondents took the possession of the said land of the petitioners for the construction of Dargi-Sohal- Nehra road on 1.7.1993 and cut down about 200 KHAIR trees standing over the said land. The classification of the KHAIR trees which were cut is as under: Sappling Plant 40 Class V trees 50 Class IV trees 70 Class III trees 40” The respondent/State in response thereto stated as under: “That the contents of para No. 3 are admitted to the extent that the land of the petitioners have been used for the construction of Dargi Sohal Nehra road during 1993. But it is denied that 200 number trees of Khair were cut/uprooted by the respondent department. There were no trees on the spot as alleged except mentioned in para-6 and as such no entry/receipt was given by the respondent department to the petitioner at the time of construction of above named road.” “… … … when the spot measurement was carried out the following trees found on the spot on the acquired land which belongs to the petitioner and other co-sharers. 10 Khasra No. No. of trees. Kind of trees. Old / New 444/1 553 2 Khair 424/1 644/2 1 Bewal 398/1 552/1 2 Tuni 418/1 595/1 3 Khair Fegra Kangoo 1 1 1 411/1 562/1 9 Khair ” The said petition was disposed of vide orders dated 24.3.2003 when this Court directed as under: “During the course of hearing, it transpired that Reference under Section 18 of the Land Acquisition Act against the quantum awarded by the Collector is pending before the District Court. In this view of the matter, we hold that this petition is not maintainable and we also observe that it shall be open to the petitioner to bring to the notice of the Reference Court all the points urged herein and also to lead evidence in support of those points, if so required. We direct the Reference Court to consider all such points and deal with them in the final judgment. The writ petition stands disposed of.” Shri Besar Dass (PW-9) Tehsildar has deposed that as Field Kanungo, Sunni he demarcated the acquired land in the presence of Forest Guard and Junior Engineer. He carried out the demarcation as per Ext.P-7 which bears his signatures. In cross examination, however, he has admitted that Ext.P-7 is not the demarcation report. The same has not been proved on record. Hence there is no documentary evidence of demarcation of the acquired land. 11 Ext. P-7 reads as under: “List of trees standing on the land comprising of the following khasra No. owned by Sh. Nokh Ram s/o Sirya Ram R/o Vill. Panohi, Moja Panohi, Teh. Suni, Distt. Shimla H.P. now acquired by HPPWD for the construction of Road, Chanawag beat, Suni Block, Bhaji Range Suni. Sr. No. Kh. No. Area Spp. DiA Class 1. 552 Tuni 21/22 IV 2. -do- Beer B/L 17/18 V 3. -do- Khair 21/22 IV 4. -do- Khair 12/13 V 5. 553/1 Khair 22/23 IV 6. -do- Khair 24/25 IV 7. -do- Khair 14/15 V 8. 571/2 Khair 11/12 V 9. -do- Khair 11/12 V 10. -do- Beer B/L 11/12 V 11. -do- Khair 13/14 V 12. 644/1 Khair 13/14 V 13. 595/1 Khair 21/22 IV 14. -do- Khair 13/14 V ABRACT Spp. V IV Total Tuni - 1 1 Beer B/L 2 - 2 Khair 7 4 11 G-TOTAL 14 Trees. Besides the above trees the following numbers of seppling are also standing over the area: Seppling: Tuni, Kangu B/L, Beer B/L, Kakar, Khair, 3 4 1 1 9 Dharu, Bheul, Kayal 4 12 2 TOTAL = 36 No. Certificate: 1. Certified that the area has been demarcated on the spot jointly by Revenue, Forest and PWD Departments. 2. Only the trees standing on the private land comprising of the khasra Nos. mentioned above has been enumerated and no tree of adjoining Forest/Govt. land has been enumerated. Sd/- Sd/- Sd/- Block Forest Forest Guard F/Kanungo Patwari Officer Suni I/C Chanawag, Beat Suni Sohal 12 (c/s) Sd/- Range Forest Officer Bhaji Forest Range Sunni (HP) ” It cannot be said that Shri Besar Dass (PW-9) is the author of the said document . Shri Bhup Ram Sharma (PW-4) Range Forest Officer, Sunni has deposed that while being posted as Forest Ranger he got the acquired land demarcated in terms of report Ext.P-7 which bears his signatures. As per the report on the acquired land there exists 1 tree of tunni, 11 trees of khair, 2 trees of buel and 36 saplings of other varieties are there on the site. However, in his cross examination he admitted that he had simply counter signed the report as he did not visit the site. His testimony, therefore, is of no consequence. Shri Puran Chand Sharma (PW-8) Retired Deputy Ranger has simply proved the report Ext.P-11 and Ext.P-12 assessing the value of the trees contained in report Ext.P-7 at Rs. 13,503/- and Rs. 8,388/- respectively. Except for the bald statement made by claimant Nokh Ram (PW-1) there is no cogent and reliable material on record to prove the actual existence of the claimed number of trees on the acquired land. Shri Besar Dass (PW-9), Shri Puran Chand (PW-8) and Shri Bhup Ram (PW-4) did not visit the spot. The persons who carried out the demarcation and prepared the said report have not been examined in the Court. Therefore not much reliance can be placed 13 upon report Ext. P-7. There is no evidence to prove loss of trees except for the admission made by the State. The court below has already awarded compensation of Rs. 8388/- based on the admission made by the respondent/State. That apart not much reliance can be laid on the said report for the simple reason that in the civil writ petition it was the claimants’ own case that 200 trees of Khair had been cut at the time of the construction of the road. This plea makes the correctness of the report (Ext. P-7) to be doubtful. It was not the claimants’ case that some of the uncut trees had been left out and were still standing on the acquired land. With this position on record not much reliance can be placed on the evidence led by the claimants. The contention of the learned counsel for the appellant thus needs to be rejected. However, keeping in view the decision of the Apex Court in Lila Ghosh (supra) the impugned award is modified to the extent that the claimants shall be entitled to interest from the date of the publication of the notification i.e. 13.9.1997 and not from 28.12.1999 i.e. the date of the award. The appeals are partly allowed and cross-objections are dismissed. (Sanjay Karol), Judge. May 18, 2009 (PK) 14