--------------------------------------------------------------------------------------- Whether reporters of the Local papers are allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No. 172 of 2007. Judgment reserved on : 03.11.2010 Decided on: December 6, 2010. Bhag Chand. …… Appellant. Versus State of H.P. and another. …….Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? Yes. For the appellant : Mr. Gulzar Singh Rathore, Advocate. For the respondent : Mr. Anshul Bansal, Addl. Advocate General. Surinder Singh, J. 1. This regular first appeal has been filed by the claimant feeling aggrieved and dissatisfied by the award passed by the Reference Court in Land Reference No.38- S/4 of 04/99 decided on 4.4.2007, whereby his reference petition under Section 18 of the Land Acquisition Act, in short ‘the Act’, was partly allowed and held him entitled only to a sum of `1,05,000/- for the compensation for the fruit plants and no enhancement for the value of the land was allowed. - 2 - 2. In short, the facts giving rise to the present appeal can be stated thus. Khasra Nos.251 and 254, situated in Mauja Dadi, Tehsil Jubbal in respect of the appellant were acquired for the construction of the road vide Notification dated 29.5.1993 published in newspaper on 22.5.1993. It was having 25 apple plants between the age group of 9 to 15 years. There were some other trees of apricot, walnut and pear etc., which according to the claimant, got uprooted. The Land Acquisition Collector awarded `13,500/- alongwith solatium and interest for the land, but he did not award any amount with respect to the fruit bearing trees. 3. The claimant did not feel satisfied with the impugned award and alleged that his land comprised in Khasra Nos.251 to 254 measuring 0-25-17 hectares was acquired for the construction of the road thus claimed the compensation for the land, which was used by the respondents but not acquired and also sought enhancement for the value of fruit bearing trees and also an amount of `1,00,000/- for severance of his holdings. 4. The respondents resisted and contested the reference petition and specifically averred that only two Khasra numbers 251 and 254 were acquired and - 3 - maintained adequacy of compensation, which was rightly assessed and paid. The issues were framed and the parties led their evidence. The learned Reference Court held that the value of the land as per the market value of the acquired land was correct and the petitioner was also held entitled for the compensation with respect to the trees to the extent mentioned above. 5. The appellant felt aggrieved, as such filed the present appeal and contended that the learned Reference Court did not appreciate the contention raised before it in the right perspective. There were grounds for the enhancement of the value of the land and further that the respondents had utilised more land than acquired and demarcation report was wrongly rejected. 6. Shri Gulzar Singh Rathore, learned counsel for the appellant vehemently argued that the learned Reference Court had ignored the sale exemplars proved on record, which were proximate to the time and were not at all taken into consideration, which justified the enhancement of the value of the land. He further submitted that no compensation for the uprooted fruit trees was paid by the Land Acquisition Collector and this - 4 - fact was also ignored by the Learned Reference Court. Lastly, he submitted that the respondents have utilised a portion of the land comprised in Khasra No.255 which was not acquired and the claimant was not compensated. 7. Contrary to the above arguments, Shri Anshul Bansal, learned Additional Advocate General has supported the impugned award. 8. I have examined the rival contentions of the parties vis-a-vis the evidence on record. 9. The claimant examined himself as PW7. He stated that three bigha of land got damaged on account of construction of the road and trees of apple and apricot ranging from 9 to 15 years were uprooted, which caused loss to the tune of `15,000/- per year. He had also made a representation to the department, but it turned deaf ears. He also stated that the land was got demarcated and the area which was used by the respondents is shown in the report Ex.PW6/A. His land got bifurcated into two parts, which resulted into deputing of two Chowkidars to look after the land. In addition to it, he had also raised the retaining wall. In Cross-examination, he expressed his ignorance if only 0-05-06 hectare of land was used for the construction of the road, which was acquired. He - 5 - admitted that during inquiry conducted by the department, he did not produce any document to substantiate his plea. 10. PW6 Budhi Singh was Naib Tehsildar, who is stated to have conducted the demarcation of the acquired land. He stated that the road was constructed over Khasra No.255/1, measuring 0-00-54 hectares. He placed on record tatima Ex.PW6/B and his report Ex.PW6/A. In cross-examination, he admitted that he knew at the time of demarcation that the land was owned by the petitioner and the State was in its possession, but he did not inform the respondents-State and even he did not look into the records of the Land Acquisition Officer. He also stated that the road was constructed long back, but denied having prepared a false report. 11. PW2 Jeet Singh Chaudhary, Assistant Engineer corroborated the case of the claimant to the extent that the land, which was acquired had 32 fruit bearing trees and this entry was made in the Measurement Book Ex.PW2/A and the age of the trees was mentioned in Ex.PW2/B. 12. PW1 Mehar Singh Thakur proved the sale deed Ex.PW1/A and PW3 Parmod Singh Patwari stated about - 6 - the mutations accepted and attested on the basis of the sale deed No.43/93 dated 10.6.93 etc. PW4 is Jawahar Kaith, who produced consumer price index (Suchkank) Ex.PW4/A. PW8 Pawan Kumar has been examined to prove the documents Ex.PW7/P & Q. PW9 Devi Saran was produced to prove the damage to the property. PW10 Naresh Kumar Mehta placed on record valuation with respect to fruit bearing trees with respect to uprooted trees from the acquired land comprised in Khasra Nos.251 and 254. 13. Respondents examined Ram Parkash, Registration Clerk as RW1 and Shri Parmod Singh Patwari as RW2. 14. First of all, I would like to take up the point with respect to the value of the land. A Notification under Section 4 of the Act was published in the month of May, 1993. The sale exemplar Ex.PW7/P was executed on 10.12.1991 whereby 11 bigha 18 biswa of land was sold for `1,92,000/- and another sale deed Ex.PW7/Q executed on 10.6.1993 with respect to the land measuring Khasra No.28 bigha 10 biswas land sold for `7,45,000/-. In both the sale instances, the subject matter of sale was land as well as built up area, which were not separately valued and assessed. Therefore, both the sale - 7 - deeds were rightly ignored altogether for consideration by the reference Court. The mutations based upon the sale deeds as stated by the Patwari can also not be taken into consideration merely on his statement because the nature of land and the distance from the acquired land is not spelt out. One sale deed produced by the respondents Ex.R-1 is dated 27.3.1992. Vide this deed, the land measuring 11 bigha 18 biswas was sold for a consideration of `1,32,000/- which comes to `11,100/- per bigha and the learned Reference Court rightly came to the conclusion that the Land Acquisition Collector awarded a sum of `11,092/- per bigha for the land of the claimant, which was acquired, having same location and the value. 15. Therefore, on the reappraisal of the evidence I do not find to arrive at a different conclusion from that of the reference Court qua the value of the land. 16. Insofar as the damage to the fruit bearing trees in the acquired land is concerned, PW10 Naresh Kumar Mehta, an official of the Horticultural Department has proved his assessment Ex.PW10/A with respect to 24 apple plants having been damaged in the acquired land i.e. Khasra Nos.251 and 15 plants at Khasra No.254, thus, - 8 - he assessed the value of these 39 fruit bearing trees to the tune of `14,474.37 paise as per Harbans Singh’s formula prevailing in the year 1966. The learned reference Court keeping in view the rise in consumer price index Ex.PW4/A, gave an increase of 724% on the assessment of the plants on the value assessed by PW10 aforesaid over and above `14,474.37 paise, which came to be `1,05,000/- for which in my opinion the claimant was rightly found entitled for the compensation of the said trees. But the learned counsel failed to point out any other formulae for seeking further enhancement. 17. The third point canvassed by the learned counsel for the appellant that the respondent had constructed road over Khasra No.255/1, for which no compensation was granted by the Land Acquisition Collector as also the Reference Court. It is apparent from the record that the respondents acquired only Khasra Nos.251 and 254 owned by the claimant-appellant and not Khasra No.255 to which the appellant seeks to prove by demarcation report Ex.PW6/A. Even in this report, there is no reference about the verification of the permanent points fixed by the Revenue Officer. There is also no reference with respect to taking assistance of Musavi for demarcation - 9 - which could have been helpful to rightly and accurately fix the boundaries of the land and this fact has also not been substantiated by PW6 when examined before the Reference Court. Contrary to it, the settlement record also does not reflect that there was a road over Khasra No.255. Khatauni Ex.PW7/M depicts that it was recorded as ‘Bagicha Bakhal Awal Faldar’. Thus, the contention of the appellant that instead of constructing the road over the acquired land, it was constructed through Khasra No.255 stands not proved and is devoid of any merit or substance. 18. Even otherwise the land which is not subject matter of the acquisition and not so notified under Section 4 of the Act, the Land Acquisition Act will have no application. In that eventuality, the claimant can only seek damages/ rent or any other redressal from the civil Court, but Section 18 of the Act will not apply to the land which is not acquired except to the extent of assessing damage or severance as envisaged under Section 23 of the Act, which is also not substantiated in this case except by making a self serving statement by the claimant without any authentic record. - 10 - 19. Faced with situation, learned counsel for the appellant submitted that an application under Section 18 of the Act for reference is not merely for enhancement of compensation, but it can also be in respect of the measurement of the land. True it is, but in the case in hand, the grouse of the appellant is not with respect to the measurement of the land which was acquired, but the contention of the appellant is that the respondents have constructed the road on the land, which was not acquired. Thus, by no stretch of imagination, it could be said to be a question of measurement. Therefore, the land which is not acquired and regarding which no notification under Section 4 had been issued under the Act, section 18 will have no application, except to the extent as mentioned in Section 23 of the Act. Since, there is nothing on record to show that there was damage to the other property, if any or thereby acquiring the land, the other property was saved, while taking the possession by the respondents of the acquired land, therefore this argument also fails. 20. Lastly, the learned counsel for the appellant also ventilated by taking a chance that the possession of the land was taken prior to the notification issued under - 11 - Section 4 of the Act and the claimant is entitled for the statutory interest under Section 23(1-A) of the Act w.e.f. the date of taking the possession. But, this point is also no more res integra. The law in this regard is crystallized by the judgment of Supreme Court in R.L.Jain (D) By LRs. Versus DDA and others, (2004) 4 SCC 79 holding that under the Act the claimant could not claim interest under Section 23 (1-A) of the Act for a period anterior to the date of issuance of Notification under Section 4 of the Act, which was further viewed and reiterated in Land Acquisition Officer and Asstt. Commissioner and another vs. Hemanagouda and others, (2005) 12 SCC 443, therefore, this argument also fails. 21. But however, on the perusal of the impugned award passed by the Reference Court I find that solatium and statutory interest was not granted by the Reference Court on the amount of compensation to the tune of `1,05,000/-. Therefore, the award passed by the Reference Court is required to be modified to the extent that the claimant shall also be entitled to the interest 30% as compensation acquisition charges and solatium on the total amount of compensation, he shall also be entitled to the interest @ 12 % under Section 23-1-A of the - 12 - Act from the date of issuance of notification till date of award. In addition thereto, the claimant is also entitled to interest on the entire amount of compensation @ 9% for one year from the date on which possession of the land was taken and thereafter @ 15% per annum till payment of the amount in terms of Section 28 and 34 of the Act and these directions are in conformity with the law laid down by the Apex Court in Sunder vs. Union of India [(2001) 7 SCC 211]. Ordered accordingly. 22. With the above modification of the impugned award, the appeal stands partly allowed. The parties are left to bear their own costs. (Surinder Singh ) Judge December 6, 2010. (Pds)