IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No. 332 of 2003 Date of Decision : 28.3.2008 Secretary, HPPWD & others …Appellants. Versus: Tunglu …Respondent. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellants: Mr. Vivek Thakur, Addl. A. G. with Ms. Shubh Mahajan, Dy. A. G. For the respondent. Mr. G. D. Verma, Sr. Advocate with Mr. B. C. Verma, Advocate. Sanjay Karol, J (Oral). The present appeal arises out of the award dated 12.11.2002 passed by the Additional District Judge, Shimla, Camp at Rohroo, in Land Reference No. 12-S/4 of 1999 titled as Tunglu vs. State of H.P. through Secretary (PWD) & others. Petitioner’s land bearing khasra Nos. 440/1 situate in Village Sharkhali, District Shimla, H. P., measuring 0-09-21 Hects. was acquired for the public purpose, namely, construction of Badiara-Kaloti-Dhumadhar road vide Notification issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 to as ‘the Act’) dated 15.11.1996 and published in Rajpatra on 30.11.1996. The total land holdings of the petitioner was approximately 10 bighas ( 75.25 Hects.) on which he set up an apple orchard. The road was constructed right through the petitioner’s land dividing it into two parts. In terms of the Collector’s award dated 25.11.1997, the compensation determined for the acquisition of the land was as under:- Classification of land Rate per Bigha 1. Kiar Awal Rs.14,308.43 2. Bakhal Awal Rs. 5,723.37 3. Karali Awal Rs. 2,289.35 4. “ Doyam Rs. 1,144.67 Compensation for the trees on the acquired land was separately assessed. Being dis-satisfied by the Collector’s award, the land owner filed a reference petition u/s 18 of the Act seeking enhancement of compensation, claiming the value of the land to be Rs.5 lacs per bigha and @Rs.6000/- per tree for a total number of 35 trees falling on the acquired land. Considering the material on record, the Court below enhanced the awarded amount and determined the compensation payable to the petitioner @Rs.5000/- per biswa for the land and Rs.1,71,540/- as value for the apple trees thereupon. Interest from the date of notification and other statutory benefits were also awarded. 3 Aggrieved by the same, the State has filed the present appeal and the respondents-claimants have also filed cross-objections being No. 352 of 2003 seeking further enhancement of the awarded amount. I have perused the record and also heard the learned counsel for the parties. Shri Vivek Thakur, Addl. A. G. appearing on behalf of the appellant-State has argued that the amount determined and awarded by the Court below is on the higher side; the interest on the enhanced amount could have been awarded only from the date of publication of the notification and not from the date of possession, therefore, the award needs to be set aside.. Per contra, Shri G. D. Verma, Senior Advocate has argued that the amount of compensation determined for the apple trees is just, fair, reasonable and in accordance with the law but, however, the Court below has seriously erred in not awarding the compensation on the basis of Sale Deed Ext.PW- 4/A. In any event, compensation for severance of land has been completely ignored. I have heard the learned counsel for the parties and also perused the record. It is an admitted case of the parties that the land has been acquired for the purpose of construction of road and the road has been constructed right through the apple orchard planted by the claimants. 4 In support of their claim, claimants produced on record two Sale Deeds Ext. PW-2/A & PW-4/A. Sale Deed Ext.PW-2/A dated 28.2.1996 is with respect to the land measuring 0-16-43 Hects. whereby the HPSEB agreed to purchase the land @Rs.5000/- per biswa. Admittedly, the land covered by Ext.PW-2/A is of different village but is adjoining Mauja Sharkhali. Ext.PW-4/A is the sale deed dated 13.7.1996 whereby 17 Sq. mtrs. of land was sold @Rs.8000/- per biswa. It is a matter of record that the land covered by Ext.PW-4/A falls within Mauja Sharkhali, which is also the area of the acquired land. From the sworn testimony of Shri Gulath Ram (PW-4), it is proved that the acquired land was of better quality, classification and higher value than the land covered by Ext.PW-4/A which is of Banjar category. Even though the acquired land was recorded as Kiar Awal category but however it was used as an apple orchard which makes the land more valuable. The Court below has relied upon Ext.PW-2/A to determine the amount payable to the appellants as compensation for the acquired land. The five yearly assessment Ext.RW-1/A did not reflect any of the sale deeds is the only reason for ignoring Sale Deed Ext.PW-4/A. For the very same reason the Court ought to have ignored both the sale deeds Ext.PW-4/A and Ext.PW-2/A. That the transaction with respect to the sale deeds was bonafide and genuinely executed is not in dispute. Simply because they did not find mention in the five 5 yearly assessment cannot be a ground for disbelieving and not considering the same for the purpose of fixation of fair market value. In any event, five yearly assessment carried out by the Patwari is not determinative of the fair market value of the land. In my view, Ext. PW-4/A has been duly proved and is of bonafide transaction, therefore, the same can be relied upon for determining the market value of the acquired land. It is also more proximate to the time of the acquisition of the land. Thus, it is held that a just and fair compensation due and payable to the petitioner as the market value of the land is determined at Rs.8000/- per biswa. While awarding compensation for the acquisition of the trees, the learned Judge has referred to and relied upon the ratio of law laid down by this Court in Collector, LAC, Mandi v. Karam Singh & Ors. (Latest H.L.J. (HP) 694). I have perused the award passed by the Collector and the compensation for the trees has been separately assessed and awarded. Before the Court below the State counsel fairly conceded that the determination of the compensation was on the basis of the H. P. Land Records Manual and ‘Harbans Singh Formula’ as contained in Article ‘the Evaluation of Fruit Trees, Basic Principles and Method. The assessment of the tree was got carried out on the basis of the price index which was prevalent in the year 1966. Taking into account the considerable increase of more than 600% on the price index, the Court below 6 enhanced the compensation by six times and awarded a sum of Rs.1,71,540/- instead of Rs.28,590/-. From the award, it is clear that the increase in the price index was not considered while determining the amount of compensation. Perusal of the petition u/s 18 of the Act would show that the statutory amount for severance of land and also the damage caused to the land due to the construction of road has been claimed by the claimant. In his sworn testimony, Shri Tunglu (PW-1) has also deposed to the said effect. However, in the impugned award, there is no reference to the same. To press his submission that this Court can award the compensation for damage sustained by reason of severance of land, learned senior counsel has brought to my notice a decision rendered by the Apex Court in Tribeni Devi and Others v. The Collector, Ranchi, (AIR 1972 SCC 1417). From the material on record, it is clear that the factors statutorily required to be considered by the Collector while awarding the just and fair compensation, have been ignored and also not been considered by the Court below. Petitioner’s orchard was bifurcated due to which extra amount was required to be spent for the up-keep, maintenance, vigil and also for the construction of suitable retaining wall. Therefore, in my view, the petitioner is entitled for such compensation @10% on the total value of the acquired land. 7 However, it is clarified that such enhancement shall not be on the amount separately determined as compensation for trees. The amount so awarded is in the peculiar facts and circumstances of the present case. I have seen the operative portion of the award from which it is clear that the interest due and payable to the petitioner in accordance with the law has to be from the date of publication of the notification which in the present case is 30.11.1996. On the enhanced amount, the petitioner shall also be entitled to statutory compensation u/s 23(2), 28 and 34 of the Act. For the aforesaid reasons, the appeal and the cross- objections are disposed of. ( Sanjay Karol ), Judge. March 28, 2008. (rana)