IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No. 105 of 2006 Judgment reserved on : 24th June, 2009 Date of decision : 27th July, 2009 ______________________________________________ Sarup Singh & others ……… Appellants. Versus: State of H.P. ……. . Respondent. ___________________________________________________ Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? Yes For the appellants: Mr. D. N. Ronta, Advocate For the respondent. Mr. R. K. Bawa, A. G. with Mr. Vivek Thakur, Addl. A. G. & Mr. J. S. Rana, Asstt. A. G. ___________________________________________________ Sanjay Karol, J. The claimants have assailed the impugned award dated 30.9.2005, passed by the Additional District Judge (Fast Track Court), Shimla (H.P.), in RBT FTC No. 43-S/4 of 2004/99, titled as Sarup Singh & Ors. v. State of H.P. For the public purpose, namely, construction of Dhali-Dakahal- Jakrari road, the claimants land measuring 3 biswas comprised in Khasra No.299/1 situate in village Parali, Tehsil Kotkhai, Distt. Shimla, H.P. was acquired. Notification u/s 4 of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’) issued on 8.8.1996 was published in the H.P. Rajpatra on 7.9.1996. The Collector passed his award u/s 11 of the Act on 19.8.1997. The compensation towards the fruit bearing trees was 2 awarded by the Collector while determining the market value of the acquired land. With respect to the trees existing on the acquired land, no compensation was awarded by the Collector. Aggrieved by the same, the claimants filed land reference petition u/s 18 of the Act. Based on the pleadings of the parties, the Court below framed the following issue:- 1. Whether the compensation assessed by the Land Acquisition Collector is inadequate, if so, what is the just and adequate compensation? ….OPP 2. Whether the acquired area has not been properly measured, if so, what is the extent of the area utilized by the respondent? …OPP 3. Whether the acquired property was in the shape of apple orchard, if so its effect? …..OPP 4. Relief. Opportunity to lead evidence was afforded to the parties By taking into account the material placed on record by the parties, the Court below came to the conclusion that 14 apple fruit bearing plants were in existence on the acquired land and the market value of the same worked out to be Rs.750 x 14 = 10,400/-. BY taking into account the increase in the price index and after deducting the expenses required for maintaining the orchard, the value was determined to be Rs.24,960/-. The Court further held that in all, 8 biswas of land was utilized by the State and hence compensation for excess land as per value determined by the Collector was also awarded to the claimants. 3 In all, the claimants were held entitled to the following compensation :- “In view of the findings returned on issue supra, the reference petition is allowed and the petitioners are held entitled to the market value of the acquired land and apple trees as under:- (a) compensation @ Rs.568/- per biswa for 5 biswas i.e. Rs.3840/-. (b) compensation for 14 apple plants i.e. Rs.24960/-. The petitioners are also held entitled to :- (a) Additional compensation under Section 23(1A) of the Act at the rate of 12% per annum on the market value determined above w.e.f. 7.9.1996 till 19.8.1997 (Date of Award). (b) Solatium @ 30% under Section 23(2) of the Act on the compensation assessed under Section 23(1), additional compensation u/s 23(1A) of the Act as above. (c) The Collector is also directed to pay interest @ 9% per annum on the enhanced/excess amount of compensation under Section 23(1), additional compensation under section 23(1A) and solatium under Section 23(2) of the Act from the date on which possession of acquired land was taken or the date of notification under Section 4 of the Act, whichever is later for one year and thereafter at the rate of 15% per annum from the date of expiry of the said period of one year till the same is paid/deposited in this Court. (d) The petitioners shall also be entitled to interest as provided under Section 34 of the Act, if not paid.” 4 Mr. D. N. Ronta, learned counsel for the appellants has assailed the award on the ground that the compensation awarded towards fruit bearing trees is on the lower side. The price index in the year 1996 had increased by 900% and not 400% as has been wrongly awarded by the Court below. I have heard the learned counsel for the parties and also perused the record. In my considered view, the award does not merit interference. This Court has consistently held that the compensation towards fruit bearing trees can be separately assessed and determined by the Collector. In Collector L.A.C. Mandi v. Karam Singh & Ors. Latest HLJ 2000 (HP) 694, this Court has held as under:- “We have carefully considered the contentions of the learned counsel and examined the legal issue involved in these appeals in the teeth of the Standing Order No.28. A mere reading of various provisions of Standing Order noticed above relevant to the controversy involved in these appeals, unmistakably show that the State Govt. and the Land Acquisition Collector have been following these provisions scrupulously and strictly in the land acquisition proceedings and the Land Acquisition Collectors have made awards consistently in accordance with the relevant provisions of the Standing Orders for assessing the market value of the land, trees and houses etc. separately. The State Government have complied and adopted the H.P. Land Records Manual under which detailed procedure and duties of the Revenue Officers have been mentioned. Under para 28.9 of the Manual, the duty is cast upon the Revenue Officer to examine the report submitted 5 by the Patwari and calculate the income of the cultivated, un-cultivated lands and fruit bearing trees. The Director of the Horticulture of the State Government while assessing the market value of the fruit bearing trees has been adopting the formula of Shri Harbans Singh. The Land Acquisition Collectors of the State have applied and adopted the same formula in awarding compensation of the fruit bearing trees separately. In these factual position and circumstances, the State of Himachal Pradesh and the Land Acquisition Collector cannot be permitted to urge that they are not obliged to pay the amount of compensation on the basis of the Standing Order No. 28 and Shri Harbans Singh Formula for acquired lands and fruit bearing trees separately. The Land Acquisition Collector is the agent of the State Government who makes offer to the claimants of the amount of compensation awarded in the awards and if the offer so made is not acceptable to the claimants, the claimants are entitled to receive the amount of compensation under protest and make reference petitions under Section 18 of the Act for enhancement of the amount of compensation. Therefore, the State Govt. and the Land Acquisition Collector, who are appellants before us in these appeals cannot be permitted to raise the plea that the awards of the Collector and enhancement of the amount of compensation by the District Judges and Additional District Judges based upon the Government Standing Order, provisions contained in the Himachal Pradesh Land Records Manual and Shri Harbans Singh formula which allow compensation in respect of the land and fruit bearing trees which allow compensation in respect of the land and fruit bearing trees separately.” (Emphasis supplied) 6 Importantly, the Court below has determined the market value of the fruit bearing trees on the basis of Harbans Singh Formula but, however, there is no material on record to prove the claim for enhancement in accordance with the Harbans Singh Formula. The corresponding increase in the price index has not been proved by the claimants. The claimants have led evidence to prove the compensation on the basis of yield of the fruit bearing trees. Shri Mauji Ram Mokta (PW-1) attorney of the claimants has simply stated that on the acquired land 14 apple plants of 10 years of age were in existence and yield from each plant was 5 to 6 boxes. One box each was sold in Delhi for Rs.300/-. He has placed on record sale memo (Ext.P-1) issued by one M/s. New Shimla Fruit Traders, Chandigarh. No doubt, that there is no cross-examination to his statement but however, his bald statement alone would not be enough to prove the yield. One Shri Shiv Singh Chauhan (PW-5) has deposed that he is a partner of the firm M/s. New Shimla Fruit Traders, Chandigarh and sale memo Ext.P-1 was issued by him. In his cross examination he has admitted that sale memo Ext.P-1 does not record the fact that the apples pertained to the orchard of the claimant Sarup Singh. He has only stated that the claimants are joint owners of the orchard along with Shri Mauji Ram. From his statement, it could not be conclusively proved that sale memo Ext.P-1 in fact pertained to the claimants. Shri Ramesh Chand (PW-2) has corroborated the version of PW-1 to the extent of the number and age of the plants. With regard to the actual existence of the trees on the acquired land, Shri Lokesh Chauhan (PW-3), Jr. Engineer has only deposed that 14 apple plants and 7 two Kail trees were in existence on the acquired land as reflected in the Measurement Book between RD 6/870 to 6/915 and the entry with respect to the same was made on 21.1.1990. In his cross-examination, he has admitted that he does not have any document to prove that the land belonged to the petitioners. The entry, according to him, in any case, was subject to verification from the revenue record. The Court below has referred to and relied upon the decision rendered by the Apex Court in P. C. Purushothama v. S. Perumal AIR 1972 SC 608 to hold that the “correspondence of Government department is admissible without the officials being examined in the Court and that documents Marks ‘X’ & ‘Y’ are part of the Government documents maintained as per Rules by the Government officials in discharge of official duty”, but however, this does not advance the claimants case as it is with regard to the existence of the total land acquired and not with regard to the existence of the trees thereupon. Therefore, in my considered view, there is nothing on record to prove the factum of the existence of 14 apple plants on the acquired land. No evidence has been led to show that these trees were actually handed over to the department and receipt thereof was issued to the claimants. The existence of the trees on the site appears to be doubtful. But be that as it may be, since the State has not filed any appeal and accepted the award, therefore, I am allowing the matter to rest as it is. There is no other evidence on record led by the claimants. Even if compensation is to be determined on the basis of yield, in my considered view, the claimants are not entitled to any further enhancement or compensation as awarded by the Court below. 8 There is no illegality, irregularity or perversity in the impugned award. The entire evidence stands correctly appreciated. For the aforesaid reasons, the appeal is dismissed. ( Sanjay Karol ), Judge. 27th July, 2009 (rana)