IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA R.F.A. No. 164/1999 Judgment reserved on 11.3.2010 Date of decision: 7 . 4 . 2010 Daulat Ram ….appellant Versus State of H.P. and another ……Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 yes For the Appellant: Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocate. For the respondent : Mr. Anshul Bansal, Add. Advocate General. Surinder Singh (Oral) The appellant in this first appeal has challenged the award passed by the learned Reference Court (District Judge Forest), Shimla in Land Reference No. 17-S/4/92/98 on the point of inadequacy. In short, facts giving rise to the present appeal are that the land bearing khasra No. 187/1 mesuring 2.4 bighas situated in village Kolvi Tehsil Kotkhai District Shimla owned by the appellant having apple trees was acquired by the State for public purpose, i.e., for construction of Deem Link Road and notification under 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - Section 4 of the Land Acquisition Act, 1894 (for short ‘the Act’), was issued by the State on 5th September, 1986 which was published in the official gazette on 3.1.1987. The other notifications under Sections 6 and7 of the Act were also issued on 30th September, 1987 which were also published in the official gazette on 22.2.1988. Objections were called from the interested persons. After completing all the formalities, land Acquisition Collector awarded a sum of Rs. 14,588.12 Ps. for the land of the appellant and Rs.37,722.50Ps. for 44 apple trees besides awarding 30% compulsory acquisition charges and 12% interest from the date of acquisition. Appellant did not feel satisfied by the impugned award passed by the Collector as such filed the reference petition under Section 18 of the Act before the Learned District Judge and claimed that the value of the land, at the time of the notification under Section 4 of the Act was more than Rs.25,000/- per bigha. It was also contended that the road was constructed through the middle of the land thereby he suffered loss due to severance for that he claimed Rs.20,000/-. He further claimed more value of the apple plants, i.e., @ 3000/- per plant and also disputed the fact that there were 46 trees and not 44. Therefore, the compensation for two more trees was also required to be paid. Respondents resisted and contested the reference petition and maintained the adequacy of the - 3 - award and further denied that the appellant was entitled to Rs.20, 000/- for severance of his holding. On the pleadings of the parties learned Reference Court framed following issues on 17.4.1989:- 1. whether there were 46 apple plants on the land acquired as alleged and whether the petitioner is entitled to enhancement of compensation for the same ?OPP 2. Whether the petitioner is entitled to enhancement of compensation for the land acquired? OPP 3. Whether the petitioner is entitled to any interest and solatium as alleged and if so, to what amount ?OPP 4. Relief. Parties led their evidence and learned reference Court came to the conclusion that there were 46 apple trees on the acquired land and enhanced the compensation vide its award dated 24.11.1992 to the extent that petitioner was entitled to compensation of Rs. 1692.50 for two more apple trees and also marginally enhanced the compensation qua the land @ Rs.6500/- per bigha instead of 4417.50 paise awarded by the Collector, further awarded Rs. 3500/- for severance of land with solatium statutory interest. The appellant felt dissatisfied by this award and preferred RFA No. 27 of 1993 in this Court. Vide order dated 3.6.1998, this Court set aside the impugned award being unsustainable in view of the judgment passed in another RFA No. 102 of 1990 titled state of H.P. - 4 - versus Mohi Ram, that no compensation could be awarded to the claimant for acquisition of the land and trees separately. Thus, the learned District Judge was directed to decide the reference afresh in accordance with law. On receipt of the record learned District Judge gave due opportunity to both the parties to lead evidence afresh. The appellant led the evidence that the apple trees were of more value than assessed by the Collector thus besides examining PW6 B.S. Bajwa also examined himself as PW8 and produced PW7 Bhagmal and closed the evidence. Respondent-State had already led the evidence earlier and examined three witnesses and no fresh evidence was led after remand of the case. The learned Reference Court at the end also held that there were 46 plants on the acquired land and the petitioner was held entitled to the enhanced amount of Rs.72678/- for apple trees accepting the valuation made by PW6 B.S. Bajwa with 30% solatium and statutory interest. The award was passed on 26.3.1999 and issue No. 2 qua land was held redundant. The appellant still did not feel satisfied as such challenged the award in the present appeal on the ground that the value of the apple trees was not properly assessed and the multiplier should have been 16 as against 8 applied by the learned Reference Court. It was also contended that no compensation was paid for the severance of the land for which he was entitled. - 5 - Shri. G.D. Verma, learned Senior Advocate duly assisted by Mr. B.C. Verma, Advocate argued that the learned Reference Court wrongly applied multiplier of 8 in respect of the apple trees and it should have been 16. To substantiate his point, he placed his reliance on the judgment passed by the apex Court in Executive Director versus Sarat Chandra Bisoi and another: AIR 2000 SC 2619. Secondly, that the benefit of price index was not given for the trees assessed as per Harbans Singh’s formula by the expert which otherwise should have been granted by the learned Reference Court. To support his point, he cited Durgavati versus Nathpa Jhakhri Power Project: Latest HLJ 2008(HP) 1328. Further that the reference Court should have valued the land and the trees separately and to buttress this point, he cited State of H.P. and others versus Nihaloo Ram and others: Latest HLJ 2008 (HP) 208 . He lastly argued that the learned Reference Court did not take into consideration the severance of the land for which the compensation was also required to be awarded. On the other hand learned Additional Advocate General supported the impugned award. In order to appreciate the rival contentions of the parties, I have examined the evidence on record. There is no dispute that out of 3-03 bighas of land, respondents acquired 2-04 bighas of land which was having 46 apple trees, for the construction of the road which, according to - 6 - the petitioner, got uprooted because of the construction of the said road. When examined as PW1 on 3.11.1990 he did not lead any evidence about the value of the trees but after the remand of the case, by the High Court, petitioner approached PW6 Sh. B.S. Bajwa an expert, who had retired as Deputy Director from the Horticulture Department, to assess market value of the apple trees. After inspecting the spot, he prepared the report Ext. PW6/A. Petitioner relied upon his report and proved it by examining him as PW6. Shri B.S. Bajwa had inspected the spot on 28.7.1998 which was located at a height of 6000/- feet. According to him said land was ideally-suited for the orchard and applied Harbans Singh’s formula to assess the value of 46 apple tress on the yield basis, but the rates were changed keeping in view the rising prices, based upon the average price prevailing in Delhi market and that too, of the royal delicious variety of the apple of medium grade. His report reveals that the information was based upon the market intelligence by marketing Agency and that of the Department of Horticulture of H.P. Although the witness of the petitioner (PW7) stated that one tree of apple had been producing 10 boxes but the expert (PW6) specifically assessed on the basis of age variety and vagaries of nature, two boxes average per tree, at the time of the notification under Section 4 of the Act. The prevalent rate per box for royal medium size was 150 per box. Thus 46 trees of apple would have the yield of 92 boxes and its price came to Rs.13800/- at the relevant time, which was correctly - 7 - assessed by the reference Court by applying the multiplier of 8 on the basis of the judgment of Supreme Court in State of Haryana versus Gurcharan Singh and another: AIR 1996 SC 106. It is settled law that market value of the fruit bearing trees is determined on the basis of the yield after applying suitable multiplier. It has been held in State of Haryana versus Gurcharan Singh and another: AIR 1996 SC 106 that under no circumstances multiplier of more than 8 can be applied to the land with trees. In the instance case, maximum multiplier of 8 has been applied, as per decision of the Supreme Court in Durgavati’s case supra. Therefore, multiplier of more than 8 is not permissible. Of course, the multiplier of 16 was applied by the High Court of Orissa with respect to the agricultural land based upon its earlier judgments, which was upheld by the apex Court in Sarat Chandra Bisoi’s case supra and was held to be proper with respect to the agriculture land only in Orissa. In the instant case it is not an agriculture land but a land having apple trees and as per judgment/order of this Court in RFA No. 27 of 1993 arising from the earlier award in this case, no compensation could be awarded for the acquisition of land and trees separately. Further, the petitioner after remand of the case appeared as PW8 and claimed compensation on the basis of report Ext. PW6/A - 8 - which was granted. Therefore, the learned Reference court rightly relied upon the assessment made by Sh. B.S. Bajwa applying the multiplier of 8 years on the basis of the existing rates/ price index at the relevant time and awarded an amount of Rs.72,678/- for 46 trees with 30% solatium and statutory interest over and above the amount assessed by the Collector. Therefore, in my opinion, there is no scope for further enhancement and increase as claimed because, the expert had applied the rates exiting at the time of the notification under Section 4 of the Act. So far as the compensation for severance of land is concerned although the land in question was 3 bighas 3 biswas but the jamabandi for the year 1985-86 Ext. P-F shows that there was an orchard over 2 bighas and 15 biswas of land and 8 biswas of land was Gairmumkin. Although there is un-assailed testimony of the petitioner that road was constructed through the middle of his land but in the un-exhibited tatima at page 94 of the reference Court file, relied upon by him shows that the road constructed was going through extreme corner of the said khasra. Petitioner did not explain as to how he was adversely affected by the construction of the road. He also did not explain any of the difficulty as to how he suffered any loss. He did not even quantify the amount to which he had to spend to manage the property alleged to have been severed. Therefore, in view of this, the Court cannot even work on speculation/ - 9 - estimation to award compensation. Therefore, petitioner is not entitled for any alleged severance amount. For the reasons aforesaid, I do not find any merit in the appeal hence dismissed. Parties to bear their own costs. April 7, 2010 (Surinder Singh),J (cm)