IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RFA No.187/2003 Reserved on: 4.8.2008 Decided on.:18.9. 2008 Liaq Ram and another. …Appellants. Versus State of Himachal Pradesh and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No. For the appellants : Mr. G.D. Verma, Senior Advocate with Mr. Romesh Verma, Advocate. For the respondents: Mr. Rajinder Dogra, Addl. Advocate General with Mr. Vikas Bhardwaj, Deputy Advocate General. Rajiv Sharma, J. This Regular First Appeal has been preferred by the appellants against the award dated 7.5.2003 passed by the learned District Judge, Shimla in land reference No. 14-S/4 of 1998. The brief facts necessary for the adjudication of the Regular First Appeal are that the land of the appellants bearing khasra Nos. 1705/1, 1705/1K and 1706/1 measuring 0-09-11 hectares was acquired by the State for the construction of Dalog Ghati-Dharogra 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 road. The notification under section 4 of the Land Acquisition Act, 1894 was published on 5.6.1995. The award was made by the Land Acquisition Collector on 27.7.1997. The claimants were paid a total sum of Rs. 22,463/- by the Land Acquisition Collector in respect of their land and the trees standing thereon. The appellants feeling aggrieved by the award dated 27.7.1997 preferred a reference petition under section 18 to the Land Acquisition Act for enhancement of the compensation before the Land Acquisition Collector. The same was referred by the Land Acquisition Collector to the learned District Judge, Shimla and was registered as reference petition No. 14-S/4 of 1998. The learned District Judge passed the award on 7.5.2003. The learned District Judge has enhanced the compensation as under: i) Enhanced market value of the trees: Rs. 46,050/- ii) Solatium at the rate of 30 per cent of enhanced market value under section 23 (2) of the Act. To be calculated by the L.A.C. iii) Additional amount under section 23 (1-A) of the Act of the rate of 12 percent on the amount of Rs. 46050/- with effect from 5.6.95 to 27.7.97: To be calculated by the L.A.C. iv) Interest on the total enhanced amount of compensation including solatium and additional To be calculated by the L.A.C. 3 amount under sections 23 (1-A) and 23 (2) of Act at the rate of 9 percent per annum with effect from 5.6.95 and till the date of payment. It is further clarified that the interest after the period of one year of the Notification, under section 4 of the Act shall be paid to the petitioners at the rate of 15 per cent per annum. The respondents shall also be liable to pay the costs of the petition.” Mr. G.D. Verma, Senior Advocate with Mr. Romesh Verma, Advocate had strenuously argued that the compensation awarded to the claimants is inadequate. According to him, the claimants were entitled to compensation for remaining 18 trees which fell in the acquired land and also for 72 trees which were damaged during the construction of the road. Mr. Rajinder Dogra, Additional Advocate General has supported the award dated 7.5.2003. I have heard the learned counsel for the parties and have perused the record carefully. It is not disputed by the parties that the compensation for loss of 12 trees standing on the acquired land has been paid by the learned District Judge by applying the Harbans Singh’s formula as well as taking into consideration the consumer index. The learned District Judge has awarded a sum of Rs. 52,260/- for the loss of 12 apple trees. In other words he has assessed the market value of 4 the trees @ Rs. 55,260/-. He has relied upon the judgment in Union of India and others versus Khazana Ram and others, 1998 (1) S.L.C. 479. PW-1 Dr. V.K. Sharma is a Professor of Horticulture from Regional Horticulture Research Station Mashobra. He at the time of appearing in the court had 36 years of service. He has done Ph.D. in fruit technology and pamology. He has visited the spot on 27th and 28th September, 1998. He has admitted in his cross- examination that the spot inspected by him was not demarcated. However, he has clarified in his examination-in-chief that the patwari was present on the spot when he visited the spot and the patwari was called by Liaq Ram. His name was Mohan Lal. In his report Ex.PA, he has assessed the total return from 122 trees @ Rs. 6,50,565/-. His statement has been rightly discarded by the learned District Judge. The land was acquired in the year 1985. He has visited the spot in the year 1998. PW-2 Puran Dass has deposed that the road was constructed in the year 1985. The apple orchard stood on the acquired land. According to him, the age of the plants was 12-15 years at that time. He has further deposed that while undertaking the construction of the road, the debris was thrown on the un-acquired land of the claimants due to which more than 100 plants were damaged. PW-3 Hukmi Ram has supported the version of PW-2. PW-4 M.S. Verma has deposed that as per entry in the measurement book 102 apple plants were standing on Liaq Ram’s land out of which 72 were damaged and 30 have been uprooted. The certificate Ex.PW-4/A was issued by Mr. 5 Kaushal, J.E. on the basis of the entry made in the measurement book. He further deposed that the department has got assessed the loss on account of damage caused to the apple trees suffered by the claimants or the uprooting of the apple trees from the Horticulture Department and as per the assessment given by the Department, damage was to the tune of Rs. 1,08,258/-. This assessment was in respect of all the trees damaged/uprooted in connection with the construction of road through the land of various residents of the area, including Liaq Ram. He has admitted in his cross-examination that Mr. Kaushal was the Junior Engineer in the area at that time. He has placed and proved on record damage claim form Ex.PW-4/B and Ex.PW-4/C submitted by claimant Liaq Ram. He has further clarified that such damage forms are submitted to the Executive Engineer and the Executive Engineers submits these forms to the revenue agency for verification. These forms were received back with the report of the Tehsildar Ex.PW- 4/D and Ex.PW-4/E. He had only seen small plants of apple on the acquired land. PW-5 is Surat Singh Negi. He has placed and proved on record Ex.PW-5/A. As per report Ex.PW-5/A, 12 trees standing on Liaq Ram’s land were damaged. PW-7 is Ram Lal. He was posted in Matiana Sub Division in the year 1995. He had counted the trees on the acquired land and issued a certificate regarding the number of the trees Ex.PW-4/A. He has signed the certificate. Out of 102 trees counted on the spot, 30 trees were uprooted and 72 had been damaged on account of throwing debris. One of the claimants Sh. Liaq Ram has appeared as PW-8. He 6 has deposed that there were 42 apple plants on the acquired land, which were 12-15 years of age. The plants were fruit bearing. 72 plants were damaged when debris generated during the construction of the road was thrown in the un-acquired land. He then stated that his orchard got divided into two parts on account of acquisition of portion of it. He has further stated that the road had been constructed in the middle of the orchard. In his cross- examination, he has deposed that he was present at the time of the visit of the Horticulture Officer. The Horticulture Officer did not count all the uprooted trees. RW-1 is Sheesh Ram. According to him only 12 trees stood on the acquired land. He has denied the suggestion that 30 apple plants were uprooted and 72 plants were damaged in the construction of the road. It is in the backdrop of the oral as well as documentary evidence led by the claimants that the present lis is to be adjudicated upon. It is clear from Annexure PW-4/A that 102 trees were damaged, out of which 72 trees were damaged and 30 trees were uprooted during the construction of the road in question. This certificate has been issued by a person, who was posted as Junior Engineer in Matiana Sub Division in the year 1985. The claimants have filled in two forms for claiming damages vide Ex.PW-4/B and Ex.PW-4/C. The Tehsildar of the area had furnished the reports i.e. Ex.PW-4/D and Ex.PW-4/E. It has come in Ex.PW-4/D that 72 trees were totally destroyed and 78 trees were damaged during the course of the construction of the road. In Ex.PW-4/E it has come that 30 trees standing on the acquired land were damaged. The 7 learned District Judge could not discard Ex.PW-4/A which has been issued by a competent person i.e. PW-7. There was no occasion for PW-7 to give exaggerated version of the damage caused to the claimants’ trees. In Ex.PW-4/A it has come that 102 trees were damaged. As noticed above, it has come in Ex.PW-4/D and Ex.PW-4/E that 72 plants of apple were damaged and 30 plants were uprooted on the acquired land, including land of the claimants. In view of Ex.PW-4/D and Ex.PW-4/E, the learned District Judge could not rely heavily on the statement of PW-4. PW-4 has orally stated that he has only seen the small plants of the apple on the acquired land and did not see any fruit bearing plants on or around the acquired land. This oral statement of PW-4 is contrary to the documentary evidence on record. Ex.PW-4/A, Ex.PW-4/D and Ex.PW-4/E have been issued by the Government Officer. These documents were required to be relied upon by the District Judge while assessing the market value of the trees standing on the acquired land or around the land which was damaged while undertaking the construction work of the road. PW- 8 has categorically stated that the age of the trees was 12-15 years. He has also deposed that his orchard was divided into two parts on account of acquisition of portion of it. He has claimed the compensation for the loss of fruit bearing plants on the basis of Harbans Singh’s formula. The learned District judge, as discussed hereinabove, has relied upon Harbans Singh’s formula while assessing the market value of the apple trees. 8 Consequently in view of the oral as well as documentary evidence, the claimants have conclusively proved that 30 apple trees were damaged standing on the acquired land and another 72 trees were damaged standing on the un-acquired land while undertaking the construction of the road in question due to throwing of debris. The claimants have only been paid compensation of 12 apple trees. It is held that the claimants are entitled to get compensation of remaining 90 trees. The market value of these trees is to be at par with the market value assessed by the learned District Judge for 12 trees by applying Harbans Singh’s formula and ratio of Union of India and others versus Khazana Ram and others (supra). It has come in the statement of PW-8 that his land was divided due to acquisition of land. In fact he has deposed that road passes through middle of his orchard. The claimants are also entitled to get compensation for damage sustained by severance of his land as per the decision rendered by the Apex Court in Tribeni Devi and others versus The Collector, Ranchi, AIR 1972 SCC 1417. The claimants are entitled for such compensation @ 10% on the total value of the acquired land. It is clarified that such enhancement shall not be on the amount separately determined as compensation of trees. Accordingly, the appeal is allowed. The claimants are held entitled to compensation for the loss/damage of 90 trees as per Harbans Singh’s formula relied upon by the learned District Judge for calculating damage to 12 trees with 10% compensation 9 on the total value of the acquired land for severance of land. The claimants are also held entitled for statutory benefits under the Land Acquisition Act, 1894. There shall be no order as to costs. ( Rajiv Sharma), J. 18.9.2008 *Awasthi*