IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: RFA.No.291/2004. Date of Decision: 4th November ,2008. H.P.S.E.B. …Appellant. Versus: Smt.Kadam Mani and others. …Respondents Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for Reporting?1 . For the appellant: Mr.Baldev Singh, Advocate. For Respondent. Mr. D.N.Ronta, Advocate. Sanjay Karol, J(Oral) . The present appeal arises out of the impugned judgment and decree dated 29th June, 2004 passed by the District Judge, Shimla in Civil Suit No. 45-S/1 of 2001/99 titled as Smt. Kadam Mani Vs. H.P. State Electricity Board and others, decreeing the plaintiff’s suit for recovery of a sum of Rs. 9,08,017.75/- along with interest at the rate of 6 per cent per annum pendente lite and future. The plaintiff has also filed cross-objections on the limited ground that the interest be awarded from the date of the claim rather than the date of the filing of the suit. For the purpose of convenience, the appellant herein is referred to as the ‘contesting defendant’ and 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 respondent No.1 who also filed cross objection is referred to as the ‘plaintiff’. For the disposal of the present appeal, the admitted facts between the parties are as under: 1. The Plaintiff is in exclusive possession of the land comprised Khasra Nos. 312, 313, 314 and 315 measuring 0-35-72 hectares situated in Chak Bakhora, Tehsil Chirgaon, District Shimla (hereinafter referred to as the ‘suit land’). In the month of December, 1997 for the construction of the road leading to the Hydroelectric Project at Chirgaon,by the contesting defendant, 90 trees belonging to the plaintiff on the suit land were damaged. 2. Certificate Ext.PW-3/A with regard to the same was issued by the appropriate authorities of the State and the contesting defendant got the assessment (Ext.PW- 1/B) prepared through the Horticulture Department of the State. The Horticulture Department carried out the assessment of the damage caused to the trees on the basis of the “Harbans Singh Formula”. The damage was assessed at Rs. 77,286/-. 3. The said amount was received by the plaintiff, but, not satisfied with the same .Plaintiff filed a suit in the court of District Judge, Shimla claiming a sum of Rs. 9,08,017.75 for the reason that the assessment carried out by the Department on the basis of the “Harbans 3 Singh Formula” took into account the price index of 1966 and did not consider the increase in the price index between the year 1966 to 1997 which was by 1049 per cent. Therefore, a sum of Rs. 8,88,016.14 as damages was claimed by the plaintiff. Further a sum of Rs. 97,287.61 was also claimed as interest at the rate of 12% on the said amount. The contesting defendant while admitting the case of the plaintiff in toto disputed and opposed the enhancement of the amount of damages for the reason that the assessment had been carried out by the Department in a just and fair manner. Based on the pleadings of the parties, the trial Court framed the following issues: 1. Whether the plaintiff is exclusive owner in possession of the land in suit as alleged?. OPP. 2. Whether the plaintiff is entitled for damages in the sum of Rs.9,08,017.75 paise?. OPP. 3. In case issue No.2 above is held in the affirmative, whether the plaintiff is entitled for interest on the amount of damages. If so, at what rate and for which period?. OPP. 4. Whether payment of a sum of Rs. 77,286/- by defendant No.1 to the plaintiff satisfies the claim of the plaintiff in its entirety?. OPD-1. 5. Relief. 4 Opportunity was given to the parties to adduce the evidence. Based on the material on record, the court below held that the plaintiff was the exclusive owner in possession of the suit land and based on the admitted facts with regard to the damage and assessment carried out by the contesting defendant, by applying the ratio of law laid down by this Court in Union of India and others Vs. Khazana Ram and others, 1998 (1) Sim. L.C. 479, partly decreed the plaintiff’s suit by increasing the amount of assessment by ten times. Suit was decreed for a sum of Rs. 6,95,574/- along with interest, pendente lite and future. I have heard learned counsel for the parties and also perused the record. That 90 trees belonging to the plaintiff on the suit land were uprooted and destroyed, while constructing the road by the contesting defendant is not in dispute. In any event, the same stands proved by Smt. Kadam Mani (PW- 1), Sh. Keshav Ram (PW-2) and Sh. Nihal Chand (PW-3) who also issued a certificate (Ext.PW-3/A) to the said effect. That the contesting defendant got the damage assessed through the Horticulture Department of the State also stands proved by Sh. Kanwar Singh (PW-4), Horticulture Development Officer, who prepared the 5 assessment statement Ext.PW-1/B and the damages assessed were of Rs. 77,286/-. This fact also stands admitted by the defendant’s witness Sh.Kalam Singh (DW- 1). PW-4 has admitted that the assessment was made by him according to the “Harbans Singh Formula of 1965” which was based on the price index of the time of preparation of the formula. According to the assessment, 84 apple plants were of six years of age and the remaining 2nd class plants were of seven years. He admitted that not only the plants but even the land was damaged as the debris had to be dumped on the suit land which is still lying there. The fact that there has been an increase in the price index by 1000.10% is evident from the document (Ext.PW-4/A) issued by the Deputy Director, Ministry of Labour, Government of India. Harbans Singh Formula is contained in the publication by Sh. Harbans Singh, formal Director of Horticulture, Himachal Pradesh dealing with the “Basic Principles and Method of Evaluation of Fruit Trees”. The publication is of the year 1966. This formula duly stands approved by the Directors of Horticulture of Punjab and Himachal Pradesh for the purpose of assessment of market value of the fruit trees. {Ranjit Singh Vs. The Union Territory, Chandigarh, 1983 Revenue Law Reporter (P&H) 451} 6 This court in Civil Suit No. 98 of 1998 titled as Smt.Vijoti Devi Vs. State of H.P. decided on 9th July, 1997 has held as under: “In Ranjit Singh V. The Union Territory, Chandigarh (supra), the High Court of Punjab and Haryana while determining the market value of the fruit trees under the provisions of Land Acquisition Act, 1894 by placing reliance on the whole sale price index published by Economic Advisor, Ministry of Industry and Civil Supplies, Government of India, allowed the increase in the price of fruit trees for the period 1966 to 1975 over the assessment of market value made on the basis of Harbans Singh formula. Similar increase was allowed by the High Court of Punjab and Haryana Gokal Chand alias Gokal Singh and another Vs. State of Punjab (1989(3) LACC 487).” In Khazana Ram (supra), this court increased the damages assessed by five times and while doing so it held: “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 7 in Article ‘The Evaluation of Fruit Trees, Basis 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 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”. For the purpose of determining the increase in the price index and the increase of the amount of damages five times, the Court took into account the price index as 100 for the base year 1971-72. However, in the present case the price index has arisen by more than 1000 times, therefore, in 8 my view, the court below has correctly increased the amount of damage by ten times. I see nothing wrong with the same. On the question of interest, this Court while dealing with an identical issue in Vijoti Devi, after taking into account the relevant provision of Section 34 of the Code of Civil Procedure came to the conclusion that the liability had not arisen out of any commercial transaction, therefore, no interest from the date of claim is to be awarded. The trial Court took into account the said judgment while decreeing the plaintiff’s suit awarding interest, pendente lite and future. I see no reason to differ with the ratio of law laid down by this Court. The trial court has considered the entire material while deciding the matter. There is no irregularity or illegality in the impugned judgment and decree. For the aforesaid reasons, the appeal and cross- objections are dismissed. (Sanjay Karol), Judge. November 4, 2008(R)