IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RFA Nos. 96 of 2006 with RFA No. 97 of 2006, RFA No. 98 of 2006, RFA No. 99 of 2006, RFA No. 100 of 2006 and RFA No. 101 of 2006. Date of Decision : June 5, 2009 RFA No. 96 of 2006 State of H.P. through Secretary (PWD) to the Govt. of H.P. Shimla and another. Appellants Versus Shri Amba Dutt Sharma Respondent RFA No. 97 of 2006 State of H.P. through Secretary (PWD) to the Govt. of H.P. Shimla and another. Appellants Versus Shri Laiq Ram Thakur Respondent RFA No. 98 of 2006 State of H.P. through Secretary (PWD) to the Govt. of H.P. Shimla and another. Appellants Versus Shri Ram Lal Respondent RFA No. 99 of 2006 State of H.P. through Secretary (PWD) to the Govt. of H.P. Shimla and another. Appellants Versus Shri Dalbir Dhanta Respondent RFA No. 100 of 2006 State of H.P. through Secretary (PWD) to the Govt. of H.P. Shimla and another. Appellants Versus Shri Ishwari Nand Respondent 2 RFA No. 101 of 2006 State of H.P. through Secretary (PWD) to the Govt. of H.P. Shimla and another. Appellants Versus Shri Rajesh and another. Respondent Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. RFA Nos. 96 of 2006, 97 of 2006, 98 of 2006, 99 of 2006, 100 of 2006 and 101 of 2006. For the appellants : Mr. R. K. Bawa, Advocate General with Mr. Vivek Thakur, Addl. Advocate General for the appellants. For the respondents : Mr. B. S. Chauhan, Advocate, for the respondents. Sanjay Karol, J. (Oral) These appeals arise out of common impugned award and as such are being heard and decided together. For the public purpose namely “construction of Bareon link road” claimants’ land situated in village Nehra, Tehsil Kotkhai was acquired. The extent of land acquired along with the khasra numbers is as under: “Khasra Nos. 292/244/1, 242/1, 241/1, 240/1, 231/1, 146/1, 130/1, 130/2, 131/1, 129/1, 165/1, 77/1, 76/1, 75/1, 80/1, 263/68/1, 262/68/1, 320/64/1, 320/64/3 and 123/3, kita 20, measuring 7-4 Bighas.” Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) issued on 11.4.1996 which was 1 Whether reports of Local Papers may be allowed to see the judgment? 3 published in the H.P. Rajpatra on 3.5.1996. The Collector Land Acquisition passed Award No. 15/93 dated 23.10.1999. In terms of the said award different rates were awarded for different categories of land as under: “Classification of Land Rate per Bigha. Kiar Rs. 15,172.60 Bakhal Rs. 5,479.00 Karali Awal Rs. 5,057.60 Karali Doyam Rs. 2,528.80 Banjar Kadim Rs. 2,528.80” Admittedly no compensation was awarded by the Collector with regard to the fruit trees on the acquired land. The relevant portion of the award with respect to the same is reproduced as under: “TREES:- Some fruit and non-fruit bearing trees have also been involved in the construction of road and lists of such uprooted trees prepared by the PWD have been produced by the interestholders. In the light of ruling of the Hon’ble Supreme Court of India reported in AIR 1996 SC 106 (State of Haryana V/S Gurcharan Singh and another) market value of land and fruit bearing trees is not to be assessed separately. In the instant case market value of land is being allowed, therefore, value of fruit bearing trees has neither been assessed separately nor allowed. The lists of non-fruit bearing trees had been sent to the Range Forest Officer, Kotkhai. But, despite repeated reminders evaluation report has not been received from him. Hence, in order to avoid delay in making the award of land compensation, compensation for non-fruit 4 bearing trees will be considered separately on receipt of evaluation report from the forest department.” (Emphasis supplied) Aggrieved by the same claimants filed land acquisition petitions under Section 18 of the Act. The Court below, based on the pleadings of the parties, framed the following issues: “1. Whether the petitioners have been paid just and adequate amount of compensation in respect of the acquired property?... OPP 2. In case issue No. 1 is proved in affirmative to what amount of compensation the petitioners are entitled? …OPP 3. Relief.” Opportunity to lead evidence was afforded to the parties and based on the material on record the Court below enhanced the awarded amount of compensation determined by the Collector and awarded compensation for the fruit trees situated on the acquired land. As per the impugned award the claimants’ were awarded compensation as under: “Name of the owner. Entitlement Rajesh 3407.50 X 960% = Rs. 32,712/- Ishwari Nand 13732.50 X 960% = Rs. 1,31,832/- Ram Singh 25861.22 X 960% = Rs. 2,48,267/- Jiwa Nand 23,375 X 960% = Rs. 2,24,400/- Laiq Ram 11487.50 X 960% = Rs. 1,10,280/- A.D. Dhanta 7051.25 X 960% = Rs. 67,692/-” 5 Statutory compensation and interest was also directed to be awarded to the claimants on the said amount. The State has filed the appeals assailing the award on the grounds (i) That the statutory interest has been awarded from the date prior to the issuance of the notification under Section 4 of the Act. The same could not have been awarded keeping in view the ratio of law laid down by the Apex Court in Siddappa Vasappa Kuri and another versus Special Land Acquisition Officer and another, (2002) 1 SCC 142 and Special Tahsildar (LA), P.W.D. Schemes, Vijayawada versus M.A. Jabbar, (1995) 2 SCC 142. (ii) No compensation with respect to the trees could have been awarded as the later judgment delivered by the Apex Court in State of J. & K. versus Mohammad Mateen Wani and others, (1998) 6 SCC 233 was inapplicable having been passed in the peculiar facts and circumstances of the said case. I have heard learned counsel for the parties and have perused the record. In support of their claim the claimants have examined Shri K.S. Katoch (PW-1), Shri Rajeshwar Parmar (PW-2), Shri K.C. Sood (PW-3), Shri Lokesh Chauhan (PW-4), Shri Dalvir Singh (PW-5), Shri Dalvir Singh (PW-6), Shri Ramesh Thakur (PW-7), Shri Amba Dutt (PW-8), Shri Ishwari Nand (PW-9) and Shri Ram Lal Dhanta (PW-10) who have proved the receipt Ext.P-3 whereby 39 apple and 6 kail trees; receipt Ext.P-4 whereby 9 apple and 5 kail trees; receipt 6 Ext.P-5 whereby 20 apple, 2 kail and 7 devdar trees; receipt Ext.P-6 whereby 17 apple and 2 almond trees; receipts Ext.P-7 and Ext.P-8 whereby 3 apple trees; receipts Ext.P-9 and Ext.P-10 whereby 28 apple and 1 nashpati trees, evidences the fact that as on the date of the acquisition of the land the said trees were in existence on the acquired land. The possession of the same was taken by the appellant State. They have also proved the fact that the department itself had got the assessment and the valuation of the land carried out from the Horticulture Department of the State. Based on the Harbans Singh Formula of 1966, assessment report Ext.P-1 was also prepared by the Horticulture Department of the State. The Assistant Director Labour Bureau proved on record cost index pertaining to the Himachal Pradesh for the year 1965, in terms whereof the increase between the year 1965, the date on which the Harbans Singh Formula was adopted, and the date of the instant acquisition proceedings the increase in the cost index was more than 960 %. The Court below accepted the same for the valuation of the trees. It is not in dispute that the State of Himachal Pradesh has been uniformally applying the Harbans Singh Formula and awarding compensation separately for the trees existing on the acquired land. The State itself had got the compensation assessed from the department. It is undisputed that the determination of compensation in Himachal Pradesh is made on the basis of H.P. Land Records 7 Manual and Harbans Singh Formula as contained in article “The Evaluation of Fruit Trees, Basic Principles and Method”. The fact that the petition under Section 18 of the Act for enhancement of the amount awarded towards the land and the trees separately is maintainable, is no longer res integra. This Court in LAC and another vs. Diwan Chand, (RFA No. 317 of 2000 decided on 10th September, 2007) has held that based on Standing Order No. 28 issued by the Financial Commissioner, that the Collector is well within his right and the claimants were equally entitled for determination of compensation for the land and trees separately. After considering the various decisions of the Courts in State of Kerala v. P .P. Hassan Koya, reported in AIR 1968 SC 1201, Ratan Kumar Tandon and others vs. State of U.P., reported in (1997) 2 SCC 161, Kiran Tandon vs. Allahabad Development Authority and another, reported in (2004) 10 SCC 745, State of J & K vs. Mohammad Mateen Wani and others, reported in AIR 1998 SC 2470, Abdul Kuddus Mandal and others vs. State of Assam and another, reported in (1999) 6 SCC 589, Tejumal Bhojwani (dead) through LRs and others vs. State of U.P., reported in (2003) 10 SCC 525, Collector, LAC, Mandi vs. Karam Singh and others, reported in Latest HLJ 2000 (HP) 694, Ramesh Chand and others vs. Land Acquisition Collector, reported in Latest HLJ 2003 (HP) 977 and RFA No. 54 of 1998 (The State Govt. of Himachal Pradesh vs. Atma Ram and others, decided on 13.7.2007, 8 while deciding the issue, the Court held as under:- “It is evident that Ratan Kumar Tandon (supra) has been clearly distinguished in the aforesaid report. In Karam Singh (supra), wherein the Standing Orders issued by the Financial Commissioner, which have the force of law and are binding on the State, have not only been considered but approved and the Court while dealing with the assessment of compensation of fruit growing trees held as under:- “…A mere reading of various provisions of Standing Order noticed above relevant to the controversy involved in these appeals, unmistakably show that the State Govt. and the Land Acquisition Collector have been following these provisions scrupulously and strictly in the land acquisition proceedings and the Land Acquisition Collectors have made awards consistently in accordance with the relevant provisions of the Standing Orders for assessing the market value of the land, trees and houses etc. separately.” “…In these factual position and circumstances, the State of Himachal Pradesh and the Land Acquisition Collector cannot be permitted to urge that they are not obliged to pay the amount of compensation on the basis of the Standing Order No. 28 and Shri Harbans Singh Formula for acquired lands and fruit bearing trees separately. The Land Acquisition Collector is the agent of the State Government who makes offer to the claimants of the amount of compensation awarded in the awards and if the offer so made is not acceptable to the claimants, the claimants are entitled to receive the amount of compensation under protest and make reference petitions under Section 18 of the Act for 9 enhancement of the amount of compensation. Therefore, the State Govt. and the Land Acquisition Collector, who are appellants before us in these appeals cannot be permitted to raise the plea that the awards of the Collector and enhancement of the amount of compensation by the District Judges and Additional District Judges based upon the Government Standing Order, provisions contained in the Himachal Pradesh Land Records Manual and Shri Harbans Singh formula which allow compensation in respect of the land and fruit bearing trees which allow compensation in respect of the land and fruit bearing trees separately. Nothing contrary has been brought to our notice and, therefore we do not think it proper to disturb the awards of the Courts below making enhancement of the amount of compensation for the land and the fruit bearing trees separately.” (Emphasis supplied) In Ramesh Chand (supra), it has been held:- “9. Another attempt was also made by the learned Advocate General, when he made submission that trees and land is not to be separately assessed. According to him, appellants are either entitled to the price of the land as an orchard land or of the trees. In my considered view, this plea is not more open in view of the standing order No.28 issued by the Financial Commissioner, Himachal Pradesh, as well as a decision of Division Bench of this Court in Collector, LADC Mandi vs. Karam Singh and others, and other connected cases (latest HLJ 2000 (HP) 694). In this case after relying on Standing Order No.28 issued by the Financial Commissioner, Himachal Pradesh and also taking note 10 of Harbans Singh’s formulae, it was held that land as well as trees standing thereon are to be assessed separately.” The Division Bench of this Court in Union of India and others versus Khazana Ram and others, 1998(1) Sim. L.C. 479 in similar circumstances upheld compensation awarded towards the trees and held as under: “8. Since both the parties are not disputing that the basis for determining the compensation is Harbans Singh Formula, the controversy is narrowed down that how much increase should be allowed over the assessment of compensation made by the Department (Annexure PB to the writ petition and Ext. RW-1/A on the file of the District Judge) keeping in view the rise in prices from the year when the said formula was prepared and adopted. This formula is contained in Article ‘The Evaluation of Fruit Trees, Basic Principles and Method’ written by Shri Harbans Singh, the then Director of Horticulture, Himachal Pradesh, which was duly approved by the Directors of Agriculture, Punjab and Himachal Pradesh for the purpose of assessment of market value of fruit trees. In judgment dated 9.7.1997 passed in Civil Suit No. 98 of 1998 titled Smt. Vijoti Devi (since deceased) through her legal representative Raj Pal Chauhan v. The State of Himachal Pradesh, the learned Single Judge of this Court has accepted this formula for determining the market value of the fruit trees. In the said judgment, it has been taken note of that this formula was published in the year 1966 since when there has been substantial increased in the Price Index. 331% or three-fold increase has been given for assessing the market value of fruit trees in the year 1986. Similarly, in Ranjit Singh v. The Union Territory, Chandigarh, 1983 Revenue Law 11 Reporter (P&H) 451 the Harbans Singh formula was applied for determining the market value of the fruit trees and premium was given for increase in Price Index from the year 1966 till the year of assessment of compensation.” This Court in Collector, LAC, Mandi vs. Karam Singh and others, (Latest HLJ 2000 (HP) 694), after considering various judicial pronouncements of the Apex Court has held that the practice adopted by the State in awarding separate compensation towards the land and trees is perfectly in accordance with law. The Court considered the ratio of law laid down in State of J&K vs. Mohammad Mateen Wani and others, AIR 1998 SC 2470 and State of Haryana vs. Gurcharan Singh and another etc., (1995) (1) Scale 125. Further in Abdul Kuddus Mandal and others vs. State of Assam and another, reported in (1999) 6 SCC 589, the Apex Court has held:- “It appears to us that the High Court fell in a basic error in not awarding compensation for the houses on the ground that since land had been acquired, it is only compensation for removal of houses standing thereon, which could have been granted because houses had not been acquired. That is not a correct approach. The compensation was required to be paid for the houses which were standing on that land. The land could not have been acquired without the houses standing thereon. The Reference Court had rightly awarded compensation for the houses. The order of the High Court on this account suffers from apparent error. Insofar as the reduction in the rate for land from 12 Rs.36,000 as awarded by the Reference Court to Rs.20,000 per bigha by the High Court is concerned. We are not persuaded to disagree because we have not found any error to have been committed by the High Court in that behalf. The High Court has not adverted to the compensation on account of zirut separately, though compensation on that account had been awarded by the Land Acquisition Collector and upheld by the Reference Court.” Standing Order No. 28 issued by the Financial Commissioner undisputedly having force of law deals with the procedure required to be adopted in the State of H.P. for the purposes of acquisition of land by the Government. Para 35 provides for Form of notice which is required to be issued under Section 9 of the Act and Paras 43, 43A requires that main points which are required to be examined by the authorities approving the award, which inter alia, contain separate assessment of compensation on account of structures, wells, tubewells, trees etc. Para 45 prescribes the format in which the statement showing the compensation awarded is required to be filled in. From column 8 it is clear that separate information with regard to number of trees, houses etc. on the land are required to be furnished. In the State of Himachal Pradesh these instructions being fully applied. The contention of the learned counsel that the ratio of law laid down in Mohammad Mateen Wani (supra) is not applicable cannot be accepted. The Apex Court was dealing with similar circumstances as in the State of Jammu and Kashmir circulars had 13 been issued for assessing separate compensation for the fruit bearing trees. This is also the practice in this State. Hence the contention that the ratio of the aforesaid Mohammad Mateen Wani (supra) has been wrongly applied cannot be accepted. In fact Gurcharan Singh (supra) referred to in the Collector’s award is inapplicable under the circumstances. Hence the contention needs to be rejected. The Court below has rightly considered and appreciated the material and the ratio of law laid down by the Court. Infact in Gurcharan Singh (Supra) no such provision was there which itself required the assessment to be carried out separately. In the present case, there is no capitalization of prices at all. In so far as the first plea is concerned the same is totally misconceived. The operative portion of the award is reproduced as under: “In addition, the petitioners shall also be entitled for solatium under Section 23 of the Act and also interest under Section 28 of the Act at the rate of 9% for the first year from the date of notification under Section 4 of the Act and 15% thereafter till the date of depositing the compensation in the court. In addition the petitioners shall be also entitled to the interest at the rate of 12% under Section 23 (1-A) of the Act from the date of publication of the notification under Section 4 of the Act till the date of award of the Collector and date of taking of possession of the land which ever was earlier.” (Emphasis supplied) 14 The interest has been awarded from the date of the publication of the notification under Section 4 of the Act. The contention needs to be rejected. The Court below has considered the material in its entirely. There is no illegality or perversity in the same. For the aforesaid reasons the present appeals stand dismissed being without any merit. (Sanjay Karol), Judge. June 5, 2009 (PK)