IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No. 68 of 2004 along with Cross Objections No.138/2004 Date of Decision : November 21, 2008 State of H.P. and another …Appellants. Versus: Jagat Ram and another …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellants: Mr. R. K. Bawa, A. G. with Mr. Vivek Thakur, Addl. A. G. For the respondents. Mr. D. N. Ronta, Advocate. SANJAY KAROL, JUDGE (Oral). Both the claimants and the State of H.P. are aggrieved of the impugned Award dated 1.4.2003, passed by the Addl. District Judge, Shimla, H. P., in Land Reference No.21-S/4 of 2001, titled as Jagat Ram & another vs. State of H.P. & another. The State has filed the present appeal and the claimants have filed the cross-objections. For the public purpose, namely, ‘construction of Chamaru Link Road’, the claimants land comprising Khewat Khatauni No. 33/69, Khasra Nos. 12 & 13, kita -2 measuring 00- 29-88 hectares situate in Chak Kohlara Doem, Tehsil Jubbal, 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Distt. Shimla, H.P., was acquired by the State of H.P. Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’) was published in the H. P. Rajpatra on 20.7.1996. The Collector’s Award (Case No.SML- 3/91), under Section 11 of the Act was issued on 15.9.1999. It is admitted case of the parties, as is evident from the Collector’s Award that in Village Kohlara, where the acquired land was situated, there were no sale transactions, hence, the Collector called for the yearly average rates of the adjoining village, Sundali and his recommendation, based on the same was accepted by the Government and, as such, market value of the claimants land was awarded @ Rs.31,209.60 paise per bigha (category ‘Bakhal Awal’), and Rs.26,129.00 (category “Bakhal Doem”). The Collector recorded that in the absence of any proof of existence of any kind of fruit bearing trees, no compensation could be separately assessed and awarded for the same. Aggrieved by the same, the claimants filed a Land Reference Petition under Section 18 of the Act. Opportunity to lead evidence was afforded to the parties on the following issue framed by the District Judge:- 1. Whether the petitioners are entitled for enhancement of compensation, as alleged? ……..OPP 3 Appreciating the material on record (oral and documentary), the Court below enhanced the compensation payable to the claimants by determining the market value of the land to be Rs.60,000/- per bigha regardless of the category and classification of the land. A sum of Rs.59,670/- was also awarded towards 27 apple trees which were uprooted at the time of construction of the road. I have heard the learned counsel for the parties and also perused the record. Mr. Vivek Thakur, learned Addl. Advocate General has assailed the Award on the ground that the compensation towards the fruit bearing trees has been wrongly assessed and awarded to the claimants. In any event, the compensation assessed both towards land and the fruit bearing trees is much on the higher side. Mr. D. N. Ronta, learned counsel for the claimants has assailed the Award only on the limited ground and has emphasized the error, apparent on the face of the record, which has crept in the calculation of assessment of damages with respect to 27 fruit bearing plants. I have heard learned counsel for the parties and also perused the record. That the claimants land was acquired is not in issue. The area and the extent is also not disputed. The Collector himself observed that that there was no material on record to 4 sufficiently prove the market value of the land in village Kohlara, hence, he called for the rates of the adjoining village, namely, Sundali. S/Shri Jagat Ram (PW-1) , Balwant Singh (PW-5) and Trilok Singh (PW-6) have proved on record the Sale Deeds Ext.PW-1/E & Ext.PW-1/F. In terms of both the Sale Deeds, 5 biswas of land, each situate in village Sundali was sold for a sum of Rs.20,000/- and Rs.25,000/-. Importantly, the land in terms of Sale Deed Ext.PW-1/F was sold to the Government. The transactions pertain to the year 1995-96. There cannot be any dispute with regard to the genuineness of the sale transactions. Between the year 1995/96 and the year 1999, there may have been some increase in the value of the land and judicial notice can be taken as this fact. The claimants have undisputedly brought on record the fact that the possession of the land was actually taken by the Government in the year 1990 when the road in question was constructed. Therefore, at the time of initiation of the acquisition proceedings, the adjoining land was accessible by road cannot be disputed. The similarity, potentiality and the use of the acquired land with that of the exemplar sale land, to my mind, cannot be doubted in the facts and circumstances of the present case. The claimants land is fertile and was put to agricultural/ horticultural use. The Court below, has rightly accepted the sale transactions for the purposes of determining 5 the market value and come to the conclusion that the market value of the acquired land on the basis of the exemplar sale transactions would be approximately Rs.80,000/- to Rs.1,00,000/- per bigha. Since the sale transactions pertain to the adjoining village, therefore, after applying the principles of law laid down by the Apex Court in State of Haryana vs. Ram Singh (AIR 2001 SC 2532) and Land Acquisition Officer vs. Narasaiah (AIR 2001 SC weekly 867), the Court reduced the aforesaid amount by 25% and arrived at a figure of Rs.60,000/- per bigha. I find that there is no error in the same. The compensation has to be awarded to the claimants which is just, fair and reasonable. The existence of 27 apple trees on the acquired land has been sufficiently proved by the claimants through the statements of S/Shri Jagat Ram (PW-1), B. S. Bajwa (PW-2) and D. K. Verma (PW-3). PW-3 has proved on record the Measurement Book (MB) from which it is evident that the aforesaid plants were uprooted at the time of construction of the road. The receipts with regard to the same, issued by the Public Works Department of the State (HPPWD) (Ext.PW-1/A & Ext.PW-1/B) also prove the same. Therefore, the Collector in his award, was not right in observing that no trees had been uprooted. 6 This Court in Collector, LAC Mandi vs. Karam Singh (Latest HLJ 2000 HP 694) has held that the trees can be separately assessed for the purposes of determining the compensation payable to the claimants. The assessment as per the H.P. Land Records Manual, is to be carried out on the basis of Harbans Singh Formula of 1966 which is uniformly applied by the State of Himachal Pradesh for the purposes of assessing the damages to the fruit bearing trees. This fact, has been fairly accepted by the learned Addl. Advocate General. Based on the said Formula, Shri B. S. Bajwa (PW-2) an Expert (Retd. Dy. Director, Horticulture, Himachal Pradesh) has proved the damages assessed by him vide Report (Ext.PW-1/C). The assessment was carried out on the basis of the Harbans Singh Formula as per the price index, as applicable for the year 1966. The report shows that a sum of Rs.5,567/- was the assessment carried out with respect to 16 number of plants falling to the share of the claimant Shri Jagat Ram and a sum of Rs.8,947/- was the assessment carried out with respect to 11 number of plants falling to the share of Shri Rattan Dass. Total sum of the same comes to Rs.14,514/- and not Rs.6,630/- which was erroneously taken to be the compensation assessed by the expert. That claimants would also be entitled to enhancement due to the increase in the escalation of the consumer price index 7 between the year 1966 and the year of the acquisition already stands decided by this Court in Collector, LAC Mandi (supra). Shri R. S. Chauhan (PW-4) has proved on record the increase in the consumer price index Ext.PW-4/A from which it is evident that the increase between the year 1966 and 1996 is of 960%. The Court below, in my view, has rightly considered the same and enhanced the sum assessed by nine times. The error apparent on the face of record, however, needs to be corrected. Accordingly, instead of Rs.6,630/-, the figure of Rs.14,514/- is to be taken, which is to be multiplied by 9 times. Hence, the claimants would be entitled to compensation of Rs.1,30,626/- instead of Rs.59,670/- as awarded by the Court below. The claimants shall be entitled to all statutory benefits from the date of publication of the Notification in accordance with law, keeping in view the ratio of law laid down by the Apex Court in Sunder vs. Union of India (2001(7) SCC 211). For the aforesaid reasons, the appeal is dismissed and the cross-objections are allowed. (Sanjay Karol), Judge. November 21, 2008. (rana)