IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No. 274 of 2003 Date of Decision: 1st October, 2008 State of Himachal Pradesh Appellant Versus Jai Lal and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellant: Mr.R.K.Bawa, Advocate General, with Mr.Vivek Thakur, Addl. Advocate General. For respondents No.1 to 7: Mr.D.N.Ronta, Advocate. Sanjay Karol, J. (Oral) In the present appeal, the State has impugned the award dated 2.12.2002 passed by Additional District Judge, Shimla, H.P. in Land Ref. No. 19-S/4 of 1999, titled as Jai Lal and others vs. State of H.P., awarding a sum of Rs.3,82,320/- alongwith other statutory benefits as compensation for the apple plants on the acquired land. For the public purpose, namely, Chowkia-Bodhna-Neoti road, claimants’ land comprising in Khasra No.678/629/76/1, measuring 11 biswas, Khasra No.400/5, measuring 15 biswas, Khasra No. 629/52/1 measuring 2 biswas and Khasra No.447/1 measuring 1-1 bighas situated in Chak Bodhna, Pargana Chanju, Tehsil Chopal, District Shimla, was acquired vide Notification dated 5.9.1996 issued under Section 4 of the Whether the reporters of Local Papers are allowed to see the Judgment? 2 Land Acquisition Act, 1894 (published in Rajpatra on 19.10.1996). The Collector’s award No.SML-21/89-2072-76 was passed on 20.8.1997 and the market value of the acquired land for different categories of land was assessed as under:- “Classification of Land Rates of land per Bigha 1. Kalahoo Doyam Rs. 13,571.40 2. Bakhal Awal Rs. 12,063.40 3. Bakhal Doyam Rs. 10,555.60 4. Krali Awal Rs. 8,142.80 5. Krali Doyam Rs. 7,539.60 6. Banjar Kadeem Rs. 2,111.20” The Collector noticed that there were trees on the land belonging to the claimants and other land owners and therefore, with regard to 163 number of apple plants assessment was carried out. However, with regard to such of those trees which were left out the list was to be prepared and sent to the concerned quarter for passing of the supplementary award on receipt of the valuation report from the concerned quarter. Aggrieved by the same, claimants filed land Reference Petition before District Judge, who on the pleadings of the parties framed the following issues:- 1. Whether the petitioners are entitled to enhanced amount of compensation of the acquired land, if so to what extent? OPP 2. Whether the petitioners are entitled for the interest from the date of compensation, as alleged? OPP 3. Relief. 3 Appreciating the material on record, the Court below found the compensation awarded towards the land to be adequate, but, however, for the trees, the District Judge enhanced the compensation 9 times and awarded as under:- 1. Market value of 14 apple plants in respect of Khasra No. 678/629/76/1 (Rs.14,520 x 9) Rs.1,30,680-00 2. Market value of 12 apple plants in respect of Khasra No.447/1 (Rs.13,260 x 9) Rs.1,19,340-00 3. Market value of 15 apple plants in respect of Khasra No.400/5 (Rs.14,700 x 9 ) Rs.1,32,300-00 Total:- Rs.3,82,320-00 Only the State has filed the appeal. The claimants have neither filed appeal nor cross-objections and are satisfied with the award as passed by the District Judge. Mr.Thakur, learned Addl. Advocate General has assailed the award on the ground that with regard to 15 apple plants, there is nothing on record to prove that they existed on the acquired land. Even with regard to 26 number of plants about which there is no dispute, the enhancement is much on the higher side. Per contra, Mr. Ronta, learned counsel for the respondents has supported the award for the reasons set out therein. I have heard learned counsel for the parties and also perused the record. 4 The fact that the claimants were entitled to compensation for the trees separately, based on the Harbans Singh Formula, is not in dispute. This Court in Collector, LAC, Mandi vs. Karam Singh and others, Latest HLJ 2000 (HP) 694, based on the decision of the Apex Court in State of J.& K vs. Mohammed Mateenwani and others, AIR 1998 SC 2470, has already upheld the right of the claimants to receive compensation separately towards land and the trees. The entitlement not in issue, the scope of the appeal is thus narrowed down to the adequacy of compensation. In order to prove its case, claimant No.1 Shri Jai Lal, examined himself as PW-1 and examined Shri Balak Ram (PW-2), Shri Ramesh Chauhan (PW-3), Shri Jawahar Kayat (PW-4), Shri Yash Pal (PW- 5), Shri Prem Singh (PW-6) and Shri Gian Chand (PW-7). Before I deal with the statement of these witnesses, it is necessary to examine the evidence led by the State. The State has only examined Shri Mast Ram, Patwari (RW-1) from the office of Land Acquisition Collector, Shimla, who has simply deposed that the compensation was determined on the basis of annual average report Ext.RW-1/A. His statement is silent with regard to any assessment which was carried out for the trees. This is the only evidence led by the State. In the claim petition the claimants specifically pleaded that on the entire acquired land there existed an apple orchard and details of plants is as under:- Sl.No. Khasra No. Area Trees 1. 678/629 11 Biswas 12 5 2. 629/52 2 Biswas 2 3. 447 1 Bigha 1 Biswa 12 4. 400/5 15 Biswas 15 Whereas assessment with regard to 14 (12 +2) trees and 12 trees on Khasra Nos. 678/629; 629/52 and 447 was carried out by the authorities, but, however, with regard to 15 trees standing on Khasra No.400/5, no assessment was done as this land was not contiguous and at a different place. The State, of course, denied the same. However, in order to prove their case, claimant No.1 examined himself as PW-1 and categorically deposed that in addition to 26 trees on Khasra Nos. 678/629; 629/52 and 447, for 15 trees on Khasra No.400/5 no assessment was carried out either by the Horticulture Department or the Revenue officials. As per the revenue record for the period 1980-81 upto 1999-2000 Ext.PW-1/B to Ext.PW-1/F, this Khasra number is recorded as an orchard. The age of the 15 apple trees was 12 years and the annual yield of 15-20 boxes per apple tree was sold approximately at Rs.400/- per box. Importantly, there is no cross- examination on this point at all. Importantly, this witness has been cross- examined only with regard to trees on Khasra Nos. 678/629; 629/52 and 447, which in fact was not in dispute. The State impliedly admitted the claim. PW-5 an official witness proved on record the measurement books from which it is evident that 26 number of trees standing on the said Khasra numbers were actually uprooted and the assessment from the Horticulture 6 department for the same was in fact got carried out by the department vide report Ext.PW-6/A and Ext.PW-6/B as deposed and proved by PW-6. The statement of PW-1 that there was an orchard on Khasra No.400/5 in fact stands corroborated by PW-2 and PW-7, who have proved that at the time of construction of road, which was much prior to the date of acquisition, the claimant had set up their orchard on Khasra No. 400/5 and the age of the trees was approximately 14-15 years. It is true that except for the oral statement of the witnesses, there is no documentary evidence to establish the fact that on Khasra No.400/5, the claimants had set up an orchard, but, however, I see no reason to disbelieve these witnesses. In fact, it was the grievance of the claimants that while carrying out the assessment since the said Khasra number was at a distant place, the authorities had ignored the same for the purpose of assessment. The revenue record showing the orchard on the land, however, cannot be conclusively determinative of this fact as even after the construction of the road the land in question continues to be reflected as an orchard. But from the oral statements, it stands proved that there was an orchard and 15 plants were uprooted. Even the Collector has recorded that some trees had been left and for which assessment had to be carried out after preparation of the list. There is nothing to prove that any compensation was awarded subsequently. The challenge to the award on this ground is thus unsustainable. The Court below has enhanced the compensation by 9 times. The enhancement is for the reason that the land was acquired in the year 1996 and the assessment was carried out by the State on the basis of Harbans Singh Formula, which applied the Price Index pertaining to the 7 year 1966. From Ext.PW-4/A, it is evident that increase in the percentage between the year 1966 and 1996 is about 960%. The District Judge has enhanced the compensation only by 9 times, which in fact is far far less than what has been proved on record. The fact that the assessment was carried out by the Department based on Harbans Singh Formula is not in dispute, therefore, the submission made on behalf of the State that the enhancement is on the higher side is not acceptable. The actual possession of the road was taken in the year 1986 and the acquisition proceedings commenced only in the year 1996. The claimants must be adequately paid for the market value of the acquired land. No other point has been urged. In my view, the Court below has considered the material in its entirety and I see no reason to interfere with the impugned award. The appeal is accordingly dismissed. 1st October, 2008 (Sanjay Karol) (C) Judge.