IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.F.A.No. 204 of 2002. Judgment reserved on : 29.10.2010 Date of decision : 18.11. 2010. Attar Singh …Appellant. Versus L.A.C. & another ....Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr. M.L.Sharma, Senior Advocate with Mr. Avneesh Bhardwaj, Advocate. For the Respondents : Ms. Ruma Kaushik, Addl. A.G. Kuldip Singh , Judge This appeal is directed against award dated 14/15.6.2002 passed by learned District Judge, Mandi in Reference Petition No. 63 of 1998. 2. The facts, in brief, are that the Government issued notification under Section 4 of the Land Acquisition Act, 1894 (for short ‘Act’) for acquisition of land for public purpose for construction of Mandi-Kehanwal road, Mohal Manyana, Tehsil Sadar, District Mandi. The notification under Section 4 of the Act was published in the official gazette on 21.9.1996. The Land Acquisition Collector (for short Collector) entered into reference and passed the award No. 12/97 on 29.9.1997 and awarded compensation at flat rate of 1 Whether reporters of Local Papers may be allowed to see the Judgment ?. 2 ` 50,000/- per bigha upto distance of 2 km from the starting point i.e. Ram Nagar Mandi proper, for land beyond 2 Kms to 3 ½ KM the rate was fixed at `40,000/- per bigha and for the land upto a distance of 3 ½ KM to 5 KM the rate was fixed at ` 30,000/- per bigha. The appellant was granted compensation amounting to `2,52,942/- on account of damages to the trees of appellant , but it was observed that net amount payable shall be given in compliance to the directions of the High Court which comes to ` 1,65,634/- after deducting ` 87,588/- paid earlier. The Collector allowed compulsory acquisition charges under Section 23(2) of the Act and additional amount by way of interest on the market value and interest as per award dated 29.9.1997. 3. The appellant was not satisfied with the award of the Collector, he filed reference petition wherein he has stated that his land comprised in Khasra Nos. 1288/444/1, 1288/444/2, 1288/444/3 and 1288/444/4 total measuring 7-14 bighas was acquired, but compensation has been awarded only for land comprised in khasra Nos. 1288/444/1, 1288/444/2 measuring 5-5-13 bighas. The appellant was not satisfied with the compensation awarded by the Collector, therefore, he prayed for enhancement of the compensation. The respondents contested the claim of the appellant. The following issues were framed:- 1. Whether 7-13-14 bighas of land of the petitioner was acquired and compensation has been paid only in respect of 5-5-13 bighas as alleged? If so, its effect? OPP. 2. To what amount petitioner is entitled to the compensation on account of the damage to his land other than the acquired land as alleged? OPP 3 3. Whether trees of the petitioner situate on the land other than the acquired land have been damaged? If so, to what extent? OPP 4.. Whether damage to the pipe line of the petitioner was caused by the construction of the road? If so, to what extent and to what effect? OPP 5. What was the market value of the acquired land at the relevant time ? OPP 6. Whether the path of the petitioner located on the land other than the acquired land have been damaged? If so, to what extent and of what consequence? OPP 7. Whether the petitioner is entitled to compensation on account of the retaining wall given by the petitioner as alleged? OPP 8. Whether the road was constructed by the Public Works Department in 1973-74? If so, its effect? OPP 9. Relief. All the issues were decided against the appellant and in favour of the respondents and the reference was dismissed by learned District Judge on 15.6.2002, hence this appeal. 4. In the appeal it has been alleged that possession of the land was taken in the year 1974-75, therefore, appellant is entitled to interest from the date of possession and atleast from the year 1979 when the respondents have admitted that possession was taken. The respondents have admitted damage to the tune of ` 2,21,587/-. The finding that the damage was approved to the tune of ` 87,588/- is wrong. The reference Court erred in not enhancing the less damage awarded by the Collector. The copy of award in reference No. 2 dated 19.4.1996 has not been properly appreciated. The average market value of the adjoining Sanyardh Mohal was about ` 85,000/- per bigha in respect of orchard land which has been 4 wrongly ignored. The additional amount under Section 23 (1A) has not been awarded to the appellant. The appellant is entitled to ` 2,21,587/- as damages out of which only ` 67,000/- has been paid and the balance ` 1,54,587/- has not been paid. The appellant is entitled to market value of land at the rate of ` 2,20,000/- per bigha in respect of orchard land. The total amount of compensation on account of market value of the orchard land comes to `11,00,000/-. The appellant is thus entitled to ` 12,54,587/- (`11,00,000/- + ` 1,54,587/-) but he has confined his claim to the tune of ` 4,00,000/-. 5. The appellant had filed an application for additional evidence in this court which was allowed and the statements of AW- 1 and AW-2 were recorded. The appellant appeared as AW-1 and has proved notification Ex.AW-1 under Section 4 of the Act. AW-2 Govind Ram has proved M.Bs Ex.AW-2/Ato Ex.AW-2/P. He has also proved Ex.AW-2/Q, copy of letter dated 27.9.1979, Ex.AW-2/R, copy of letter dated 27.9.1979 alongwith its annexures. Ex.AW-2/S, copy of abstract of cost and Ex. AW-2/T, copy of plan. In rebuttal RW-1 Bhawani Singh was examined by respondents. He has stated that he was posted as Junior Engineer at Mandi on Mandi-Kanhwal road during 1980-81. About 296 trees of Attar Singh were damaged while constructing the road. He has recorded this fact in M.B. but in M.B. lesser number of trees were shown. 6. I have heard Mr. M.L.Sharma, Senior Advocate on behalf of the appellant and learned Additional Advocate General for the respondents. The appellant has also filed written submissions. I have considered the written submissions also. The learned Senior 5 Advocate appearing on behalf of the appellant has reiterated the stand of the appellant in the appeal as well as in the written submissions. He has submitted that the appellant is entitled to interest from the year 1974-75 when the possession of the land was taken from the appellant. In alternative, the appellant is entitled to interest atleast from the date 1979 when the notification under Section 4 of the Act was published in the official gazette for the acquisition of land. The compensation, damages and other amounts including interest have not been awarded to the appellant in accordance with Act. The flat rate for orchard land awarded to the appellant is wrong. He has submitted that no distinction has been drawn between orchard land and inferior quality of land while fixing flat rate. The appellant is entitled to compensation as claimed in the appeal but in order to avoid costs the appellant has confined his claim to `4,00,000/- only. The learned Senior Advocate has also submitted that the appellant is also entitled to reliefs as prayed in the written submissions. 7. The learned Additional Advocate General has supported the impugned award and has submitted that due and just compensation has been given to the appellant by the Collector which has been affirmed by the learned District Judge. The appellant is only entitled to interest from the date of notification under Section 4 of the Act on the basis of which land was acquired. The award of Collector has been rightly upheld by learned District Judge. The learned Additional Advocate General has prayed for dismissal of the appeal. 6 8. In order to appreciate the rival contentions of the learned counsel for the parties, it is necessary to refer to evidence which has come on record. PW-1 Attar Singh when appearing in the reference court has stated that his 7½ bighas land in Mohal Manyana for construction of road was taken into possession in the year 1973-74. The notification to acquire this land was issued in the year 1984 but it lapsed. Thereafter, another notification was issued in the year 1989, it also lapsed. A case was filed in the High Court and thereafter notification was issued in the year 1996. The land measuring 7-5 bighas is with the Department and the road has been constructed over this land. There is a retaining wall and crate wall, a part of the land has been damaged. He has been given less compensation. The market value of the land was ` 2,22,800/- per bigha in the Mohal. The land of appellant was earlier also acquired at the rate of ` 60,500/- per bigha as per award Ex.PA. 9. PW1 has further stated that the land in question is at a distance of 2 ½ km from town. The National Highway is at a distance of 1 ½ km. There were 450 fruit bearing trees in the acquired land which were damaged. The road has damaged his property, paths. The boundary wall on the left side of the road has been damaged and he has suffered a loss of ` 5,00,000/-. The department has assessed ` 2,21,587/- for this damage but the Collector has awarded ` 67,763/-. The Collector has given other benefits from the year 1996 whereas he is entitled to such benefits from the year 1984. The judgment of the High Court is Ex.PC. In cross-examination, he has stated that he cannot give an instance where the land was sold at the rate of ` 2,22,800/- per bigha. 7 10. PW-2 Basant Singh, Patwari has proved spot map Ex.PE which was prepared by him as per Latha. He has also produced average five year price Ex.PF prepared by him. In cross- examination, he has stated that Kanungo can give the demarcation on the spot. PW-3 Manmohan Singh has proved sale deed Ex.PG. PW-4 Suresh Kumar, Record Keeper is not a material witness. PW-5 Lekh Ram, Naib Tehsildar has stated that he had conducted inquiry for the acquisition of land for Mandi-Kanhwal road in Mohal Manyana and a copy of such enquiry is Ex.PW-5/A. In cross- examination, he has stated that according to average price, the price of one bigha land is ` 2377.60 paise. 11. RW-1 Mohinder Kumar, Patwari has stated that he has prepared five year average market value and one year market value of Mohal Manyana as per the record which is Ex.RA. As per the average cost of one bigha kisam Faldar Bagicha comes to ` 26,249.60. The period of one year average is from 29.2.1996 to 28.2.1997. In cross-examination, he has stated that acquired land is at a distance of 3-4 km from Mangwain in Mandi town. He has denied that there was orchard in the entire acquired land. As per his report which he had brought in the court, the total damage of the plants in the acquired land was ` 2,52,941.60. RW-2 Dharmu has stated that he had sold 3-9-9 bighas to Ghanshayam in Mauja Manyana for ` 41,000/- in June 1996 vide sale deed Ex.RW-2/A. He has stated that the land which he had sold is situated at a distance of 10 KM from Mandi town. RW-3 Roshan Lal, Junior Engineer has stated that as per record the land was acquired in the year 1996-97 and construction work of the road started in between 8 1980-1984. The trees were counted in presence of the owner and Gram Pradhan vide Ex.RX. The construction of the road was started in the year 1982 and thereafter the possession was taken. The claim of damages of the fruit trees during acquisition was got verified by joint team of revenue, horticulture and PWD and damage was assessed to the tune of ` 87,588/-. The damage verification report is Ex.RY. 12. Ex.PC is the certified copy of judgment dated 11.12.1995 in CWP No. 2540 of 1995 Attar Singh vs. State of H.P. in which it was directed that the land acquisition proceedings shall be started and completed within one year. If the damages assessed has been accepted/admitted by the concerned authority, it shall be paid by the concerned competent authority within a period of two months and the amount shall be adjusted while awarding the final compensation. Ex.PA is the copy of award No.2 dated 19.4.1996 for acquisition of land in village Manyana. The notification under Section 4 of the Act for acquiring the land covered by Ex.PA was published in official gazette on 9.9.1994. The land covered by award No.2 was also acquired for construction of Mandi – Kanhwal road. The Collector in award Ex.PA has assessed the market value at ` 60,500/- per bigha. 13. Ex.RW-2/A is the sale deed dated 15.6.1996 by Dharmu in favour of Ghanshyam of land measuring 3-9-9 bighas for a consideration of ` 41,000/-. Ex.RA is the average price of five years from 30.8.1991 to 29.8.1996 and from 29.2.1996 to 28.2.1997 for one year and as per Ex.RA the average price of one bigha Kisam Faldar Bagicha comes to ` 26,249.60 paise. Ex.AW-1 is the 9 copy of official gazette in which notification under Section 4 of the Act dated 11.8.1979 for acquisition of land in village Manyana for construction of Mandi-Kanhwal road was published. Ex.AW-2/A M.B. 1216 was entered on 26.3.1979, Ex.AW-2/B M.B. No.1216 was entered on 27.3.1979, M.B. No.1343 Ex.AW-2/C to Ex.AW-2/E was entered on 5.4.1979, Ex.AW-2/G is the letter dated 22/27.9.1979 written by Executive Engineer to Land Acquisition Officer regarding service of notice under Sections 11, 9 of the Act. M.B. No. 1476 Ex. AW-2/F to Ex.AW-2/M, was entered on 10.2.1981. Ex.AW-2/R is the letter dated 2.1.1980 of Executive Engineer to Land Acquisition Officer intimating that in the alignment of road some trees have been assessed by the Horticulture Officer and the same was forwarded to the Land Acquisition Officer for verification. Ex.AW-2/S is the detailed abstract of cost of ` 26,523/- of retaining wall of Pitha Singh Pathania. Ex.AW-2/T is the site plan of garden of Pitha Singh Pathania. 14. The documents brought on record by appellant in additional evidence are prior to 21.9.1996 when notification under Section 4 of the Act was published in official gazette for acquiring the land in question. Therefore, even if the case of the appellant is accepted that the land in question was taken into possession by the Department as alleged by him in that case also Ex.AW-2/A to Ex.AW-2/T are of no help to appellant. The appellant is entitled to compensation for acquisition of land in accordance with Act. In L.A.C. and others vs. Kishan Singh and others AIR 2006 H.P. 1, it has been held that respondents can claim any compensation/damages/rent, from the date of their being deprived 10 of the land under acquisition till the date of publication of notification under Section 4 of the Act and for their such claim they will be free to initiate appropriate legal proceedings as per law. In case the respondents have done something on the land of the appellant prior to publication of notification under Section 4 of the Act under which the land was acquired and appellant has suffered some damage due to alleged acts of the respondents then appellant will have to go for such remedy as available to him in law but not under the Act. The alleged acts attributed to respondents are prior to publication of notification under Section 4 of the Act under which the land has been acquired, therefore, claim based on such alleged Acts is outside the purview of the Act, hence the claim of the appellant for such alleged acts of respondents under the Act is not maintainable. 15. The appellant AW-1 in the additional evidence has placed on record notification Ex.AW-1 regarding acquisition of the land. The perusal of notification Ex.AW-1 indicates that respondents on 11.8.1979 had issued notification under Section 4 of the Act for acquiring land comprised in khasra Nos. 1288/444/1 and 1288/444/2 in village Manyana for construction of Mandi-Kanhwal road. This notification had lapsed, the land was acquired in pursuance of notification under Section 4 of the Act published in the official gazette on 21.9.1996. In these circumstances, the appellant cannot take benefit of notification Ex.AW-1. 16. There is nothing on record that in fact land measuring 7- 13-4 bighas of the appellant was acquired. The appellant while appearing as PW-1 in reference court has stated that his land measuring 5-12 bighas was acquired and remaining land was left 11 out. In the statement, he has stated that he is entitled to ` 2,22,800/- per bigha rate but he has also stated that he is not in a position to give any instance that any land was sold at the rate of ` 2,22,800/- per bigha. The sale deed Ex.PG dated 30.3.1993 in between Purshotam Lal and Smt. Raj Kumari is of Village Sanyarad of 1 biswa 10 biswansis which was sold for ` 60,000/-. It has not been proved that land sold vide sale deed Ex.PG is similar to the land under acquisition. Likewise land covered in sale deed Ex. RW-2/A dated 15.6.1996 has not been proved to be similar to the acquired land. Therefore, no benefit of sale deeds Ex.PG and Ex.RW-2/A can be extended to any party. The average five year price Ex.PF and five year and one year average price Ex.RA are of no help to any party in absence of proof what was the quality of land referred in Ex.PF and Ex.RA. Therefore, Ex.PF and Ex.RA, cannot be relied for assessing the market value of acquired land. 17. The appellant has taken the stand that respondents have admitted damage to the tune of ` 2,21,587/- out of which only an amount of ` 67,000/- has been paid and balance amount payable comes to ` 1,54,587/-, which has not been paid. In these circumstances, the appellant has claimed ` 1,54,587/-. The claim of ` 2,21,587/- and payment of only ` 67,000/- out of that amount has not been established by appellant from the record. On the contrary, RW-1 has stated that as per report the total damage to the trees of the acquired land comes to ` 2,52,841.60. RW-3 has denied that PWD authorities had verified the damage for ` 2,21,000/-. The Collector in the award dated 29.9.1997 under heading “V award in 12 respect of damage to trees of Shi Attar Singh Pathania” has held that total amount allowed comes to ` 2,52,942/- and after deducting the advance payment of ` 87,588/- in compliance to the direction of the High Court, the balance payable amount comes to ` 1,65,634/-. The appellant could not shatter this finding of the Collector recorded in the award. Thus, it is held that the appellant is entitled to the aforesaid amount of ` 1,65,634/- if not already paid to him. 18. The appellant has not placed on record worth believing material for assessing the market value of acquired land at the time of publication of notification under Section 4 of the Act. However, appellant has placed on record award No.2 dated 19.4.1996 Ex.PA pertaining to the land acquired in village Manyana for construction of Mandi-Kanhwal road for which notification under Section 4 of the Act was published in official gazette on 9.9.1994. The land in question is also situated in village Manyana and was also acquired for public purpose for construction of Mandi-Kanhwal road on the basis of notification under Section 4 dated 21.9.1996. The award Ex.PA can be relied in view of ONGC Ltd. Vs. Sendhabhai Vastram Patel and others (2005) 6 SCC 454 for assessing the market value. In supra, the Supreme Court in para 11 has held as follows:- “While determining the amount of compensation payable in respect of the lands acquired by the State, indisputably, the market value therefor has to be ascertained. Although, there exist different modes for arriving at the market value for the land acquired; the best method, however, as is well known would be the amount which a willing purchaser of the land would pay to the owner of the land as may be evidenced by the deeds of sale. In the absence of any direct evidence on 13 the said point, the court may take recourse to other methods viz. judgments and awards passed in respect of acquisition of lands made in the same village and/or neighbouring villages. Such a judgment and award in the absence of any other evidence like deed of sale, report of expert and other relevant evidence, however, would have only evidentiary value.” The appellant is therefore, entitled to atleast rate not less than awarded in award Ex.PA where market value of the land was assessed at ` 60,500/- per bigha. 19. It is common knowledge that the land prices are increasing. The Supreme Court in Lila Ghosh (Smt.)(dead) through L.R. Tapas Chandra Roy Vs. State of W.B.(2004) 9 SCC 337 has held that normally courts give an appreciation of 10% per annum. The land was acquired for common purposes for construction of road in the notifications dated 9.9.1994 and 21.9.1996. The award Ext.PA is based upon notification under Section 4 of the Act published in official gazette on 9.9.1994. Therefore, appellant is entitled to 10% increase per year from 9.9.1994 to 21.9.1996 over and above the rate allowed in award Ext. PA. Thus, the rate of the acquired land comes to ` 60,500/- + ` 6050/- + ` 6050/- = ` 72,600/- per bigha. 20. The appellant has claimed interest from the date of taking of possession of the land in question in the year 1973-74 or atleast from the year 1979 when notification under Section 4 of the Act for acquiring the land in question was issued. It has come on record that in fact the land in question was acquired in pursuance to notification dated 21.9.1996 published under Section 4 of the Act in 14 the official gazette. The land in question was not acquired in pursuance to notification Ex.AW-1 issued under Section 4 of the Act. In Narotam Ram and etc. vs. Land Acquisition Collector and others AIR 2003 Himachal Pradesh 55, it has been held that interest under Section 28 of the Act is to be paid from the date of taking of possession under Act which in no case can be before issuance of notification under Section 4. In the present case, the land in question was acquired in pursuance to notification under Section 4 of the Act which was published in the official gazette on 21.9.1996, therefore, interest is payable to the appellant only from 21.9.1996 and not prior to that. The appellant has also raised grievance regarding supplementary award which has not been given by the Collector regarding the trees. The direction for making supplementary award cannot be given to the Collector in an appeal for enhancement of compensation. The appellant is at liberty to seek such remedy available in law for a direction to Collector to give supplementary award, if permissible in law and not otherwise already made. 21. In view of the above, the appeal is allowed and the impugned award is set aside. The market value of acquired land of appellant is assessed at ` 72,600/- per bigha, the appellant is also entitled to an amount at the rate of 12% under Section 23 (1-A) of the Act on the market value of the acquired land w.e.f. 21.9.1996 to 29.9.1997, 30% solatium on the market value under Section 23 (2) of the Act. On the enhanced amount of compensation, the appellant shall also be entitled to interest at the rate of 9% per annum for one year from 21.9.1996 and thereafter at the rate of 15% per annum till 15 payment, the appellant is also held entitled to ` 1,65,634/- on account of damage to trees as held