IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No. 291 of 2003 Reserved on: December 23, 2008 Date of Decision : February 25, 2009 State of H.P. and others …Appellants. Versus: Jiwan Kumari and another …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes For the appellants: Mr. R. K. Bawa, A. G. with S/Shri Vivek Thakur, Addl. A. G. and Vikas Rathour, Dy. A. G. For the respondents: Mr. G. D. Verma, Sr. Advocate with Mr. B. C. Verma, Advocate. SANJAY KAROL, JUDGE. The State has filed the present appeal assailing the impugned Award dated 3.3.2003, passed by the Addl. District Judge, Shimla, H. P., in Land Reference No.57-S/4 of 1999, titled as Jiwan Kumari & another vs. State of H.P. & others. For the public purpose, namely, ‘construction of Pandranu-Sainj Road’, the State of Himachal Pradesh acquired the land situate in village Sainj, Tehsil Jubbal, Distt. Shimla, H.P. The claimants land measuring 0-81-64 hectares comprised in Khasra Nos. 159, 165, 166/1, 173, 581, 583, 601 and 602 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 situate in village Sainj was also acquired. Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’) was issued on 29.1.1997 which was published in the H. P. Rajpatra on 22.2.1997. The Collector’s Award (Case No.SML-39/86), was issued on 25.5.1998. In terms of the common Award, 1-53-08 hectares of land belonging to various land owners was acquired and compensation for the land was determined at the following rates:- Sr. No. Classification of land Rate of land per bigha (in Rupees) 1. Kiar Awal 12,837-20 2. Bakhal Awal 9,841-86 3. Bakhal Doyam 7,702-32 4. Krali 3,851-16 5. Banjar 1,283-72 The petitioner’s land is of categories; Bakhal Awal, Bakhal Awal Faldar, Banjar Kadeem, Bakhal Awal Villa Faldar and Gair Mumkin. Therefore, the acquired land falls within the category of Bakhal Awal for which the Collector has awarded compensation at the rate of Rs.9,841.86 paise (Rs.492.09 paise per biswa) With regard to the trees existing on the land covered under the award, the Collector observed as under:- “3. TREES:- The lists of the fruit & non-fruit plants has been prepared and sent to the concerned quarter. The compensation of the same shall be paid through a supplementary 3 award on the receipt of its valuation report from the concerned quarter.” Being dis-satisfied with the compensation awarded, the land owners filed a Land Reference Petition under Section 18 of the Act. The present claimants herein who filed a separate Land Reference Petition pleaded that; (i) the market value of the land determined by the Collector was less; (ii) compensation with regard to 78 apple plants falling in the age group of 25 to 30 years was not awarded at all, hence Rs.15,000/- per apple plant be awarded for the same; (iii) construction of the road divided the claimants’ land into two portions hence, Rs.10 lacs be awarded on account of severance of holdings; (iv) the construction of road was done in a slip shod manner and the debris was thrown on his land which damaged the retaining walls and the Farm House and as such, Rs.5 lacs be awarded for the same; (v) 112 apple plants belonging to the claimants on the unacquired land were destroyed, hence, compensation for the same be also awarded. The claim petition was opposed by the appellant- State, inter alia specifically denying the existence of any apple plants on the acquired land or the damage caused to the claimants’ unacquired land and 112 apple plants existing thereupon. Based on the pleadings of the parties, the Court below framed the following issue:- 4 1. Whether the petitioners are entitled to the enhanced amount of compensation, as alleged? ……..OPP In evidence, the claimants examined seven witnesses. The appellants-State did not lead any evidence. Appreciating the material on record (oral and documentary), the Court below found that the claimants through the evidence of Shri Varinder Singh (PW-1) and Shri Phool Dass (PW-3), were able to prove that the Sale Deeds Ext.PW-1/A and Ext.PW-1/B could be considered for determining the true market value and based thereupon compensation @ Rs.2000/- per biswa for the entire land irrespective of the classifications was awarded. For the claim pertaining to 78 apple plants, the Court considered the statement of Shri Mast Ram Patwari (PW-6), who proved letter dated 19.6.2001 (Ext.PW-6/A) sent by the Land Acquisition Collector to the District Horticulture Officer, requesting for assessment of the apple plants over the acquired land. Solely based on the testimonies of Shri Varinder Singh (PW-1) & Shri Mast Ram Patwari (PW-6), the Court below concluded that 78 apple plants existed on the acquired land and taking the annual yield of each plant to be of Class-III type i.e. Rs.50/- and the future life span of the trees to be 15 years, a total sum of Rs.58,500/- was determined as value of the same. Further, considering the increase in the consumer price index between the year 1966 till the year of the acquisition of the land i.e. 1997 by 1049%, the compensation was enhanced ten times 5 and in all a sum of Rs.58,500/- x 10 = Rs.5,85,000/- was awarded as compensation towards 78 apple plants. With regard to the damage caused to 112 apple plants due to the throwing of the debris or irregular cutting of the hillock, the Court below found that there was no cogent and reliable evidence and hence, no compensation was awarded for the same. For the damage caused to the Farm House and also the rash and negligent digging work carried out by the State, the Court awarded Rs.50,000/-. Thus, in all the following enhanced compensation was awarded by the Court:- (i) Market value of the acquired land : Rs.2,000/- measuring 01-48-81 hects. (per biswa) (ii) 78 apple plants : Rs.5,85,000/- (iii) Damage to the Farm House : Rs.50,000/- and land caused due to land slides etc. In addition thereto, solatium and interest in accordance with the Act was also directed to be paid. Mr. Vivek Thakur, learned Addl. Advocate General has assailed the award on the following counts:- a) Sale Deeds Ext.PW-1/A & Ext.PW-1/B pertain to small parcels of land and thus could not have been made basis for determining the enhanced market value of the land; b) in the absence of any cogent and reliable material to prove the existence of 78 apple plants on the 6 acquired land no compensation could have been awarded. The findings are purely based on surmises and conjectures; c) there was no material on record to prove the existence of the farm house or damage caused to the retaining walls, hence, no compensation could have been awarded at all; d) there has been complete mis-appreciation and misreading of evidence resulting into miscarriage of justice and, as such, the appellants-State has been put to serious loss inasmuch as more than 10 lacs has been awarded in favour of the claimants without any justification and material on record. Per contra, Mr. G. D. Verma, learned Senior Counsel has supported the award for the reasons set out therein. According to him, (a) the Court below had the opportunity to record and hence appreciate the evidence properly (b) The claimants brought their entire evidence on record and the appellant-State miserably failed to prove its case by leading any evidence which only proved that the State had accepted the claimants’ pleas. (c) In the alternative, it is argued that the matter be remanded back to the court below to enable the parties to lead additional evidence to prove their case. In support of his contention, he has referred to and relied upon the ratio of Law laid down in; Harminder Kumar Modi & Ors. v. State of H.P. & another {1997(3) Sim.L.C. 353}; Special Land Acquisition Officer v. Indian Standard Metal & Co. Ltd., {2005(9) SCC 759}; Cement Corpn. of India Ltd. v. Purya & others 7 {2004(8) SCC 270}; T. D. Gopalan v. Commissioner of Hindu Religious and Charitable Endowments {AIR 1972 SC 1716} & Ranvir Singh and another v. Union of India {2005(12) SCC 59}. I have heard the learned counsel for the parties and also perused the record. It is a settled position of Law that the reference petition is an original proceeding and the Court has to determine the market value on the basis of the material produced by the parties before it. The burden to prove the fact that the compensation awarded by the Collector is inadequate is upon the claimants {Union of India v. Zila Singh & Others (2003(10) SCC 166}. In order to prove its case, the claimants examined the following witnesses:- Power of Attorney holder of the claimants Shri Varinder Singh (PW-1); Shri Jawahar Kaith (PW-2), who proved the increase in the percentage of the price index Ext.PW-2/A; Shri Phool Dass (PW-3) the vendee of the land of exemplar Sale Deeds Ext.PW-1/A and Ext.PW-1/B; Shri Mohan Singh Mali (PW-4) of Shri Varinder Singh (PW-1); Shri Jeet Singh, (PW-5), Jr. Engineer, Hatkoti Sub Division HPPWD; Shri Mast Ram Patwari, (PW-6) LAO office, Winter Field, Shimla who proved letter dated 19.6.2001 written by the Land Acquisition Officer to the District Horticulture Officer and Shri Keshav Patwari (PW-7) who proved the revenue record Ext.PW-7/A for the year 1997-98 pertaining to the acquired land. PW-1 tendered in evidence the award passed by the Collector Ext.PW-1/E. 8 The Apex Court in Chimanlal Hargovinddas vs. Special Land Acquisition Officer, Poona and another {AIR 1988 SC 1652}, has laid down the principles for determining the market value of the land on the basis of exemplar Sale Deeds pertaining to small parcels of land. In terms of Sale Deed Ext.PW-1/A duly proved by PW-1 & PW-3, 4 biswas of land was sold in village Sainj for a total consideration of Rs.10,000/-. In terms of the said exemplar sale land, the market value comes to Rs.2500/- per biswa. In terms of Sale Deed Ext.PW-1/B dated 24.10.1996, 6 biswas of land also situate in village Sainj was sold for Rs.12,000/- and the market value in terms of the said Sale Deed comes to Rs.2000/- per biswa situate in the same village, being proximate to the date of acquisition. The instant land was acquired in 1997. The said exemplar Sale Deeds, therefore, were rightly considered by the Court below for determining the market value. It is true that the exemplar Sale Deeds pertain to the small parcels of land but the claimants land is also not very large chunk of land. The claimants have proved the fact that their land was irrigated and of better quality and put to agriculture use. It stands proved on record that the possession of the land was actually taken over in the year 1981-82. That the road in question was constructed in the year 1981-82 stands proved from the statement of PW- 5. As on the date of acquisition, the road stood fully constructed which is also evident from the statements of PW-1 & PW-3 and, hence, the claimants land adjoining to the acquired land was accessible by road. It is 9 undisputed fact that the road was constructed through the claimants land dividing their estate into two portions. In my considered view, the Court below has rightly determined the compensation with respect to the acquired land and no fault can be found with respect to the same. The claimants were to stand on their own legs and prove their case rather than wait for the State to disprove their case. With regard to the existence of 78 apple trees on the acquired land, the only material on record are the statements of PW-1, PW-4 & PW-6 and Ext.PW-6/A is the only document. The Apex Court in T. D. Gopalan (supra) has held as under:- “……………..the uniform practice in the matter of appreciation of evidence has been that if the trial Court has given cogent and detailed reasons for not accepting the testimony of a witness, the appellate Court in all fairness to it ought to deal with those reasons before proceeding to form contrary opinion about accepting the testimony which has been rejected by the trial Court.” (Emphasis supplied) In the impugned award, the Court has observed as under:- “Regarding the damage to the plants, the attention of the Court was invited to the letter Ext.PW-6/A addressed by the Land Acquisition Collector to District Horticulture Officer, wherein there is a reference that a list of the uprooted trees from the acquired land is being annexed with the said letter and a request was 10 made to assess the market value of the same. But, the petitioners have not annexed any list of the plants which were uprooted from the acquired land.” (Emphasis supplied) “There is also no evidence on the record that what was the type of the apple trees over the acquired land. Normally Class-I apple trees gives early income of Rs.100/-, Class-II apple plant Rs.75/- per year and Class-III apple plant gives Rs.50/- per year. Even if it is assumed that the apple plants in the case in hand were of Class-III type, then the early income of each plant would be Rs.50/- per year. Since these 78 apple plants were in the age group of 30 years, therefore, such apple plant normally expected to give fruit for another 15 years.” (Emphasis supplied) Inspite of his said findings, the Court adjudicated the claim petition on mere presumption that 78 apple plants were actually in existence on the acquired land at the time of acquisition. According to the claimants the possession of the land had actually been taken in the year 1981-82 but the proceedings for acquisition commenced only in the year 1997. The road was constructed in the year 1981-82 and the trees must have been uprooted then. PW-1 is the Power of Attorney holder of the claimants. He has simply stated that on the acquired land, 78 apple plants between the age of 28 to 30 years were in existence which were uprooted and also during the construction of the road due to the cutting and blasting, 112 other apple plants were damaged. 11 PW-4 has only reiterated the version of PW-1. In cross- examination, however, they have denied the suggestion about the existence of the apple plants on the acquired land. PW-6 has simply proved letter dated 19.6.2001 (Ext.PW- 6/A) written by the Land Acquisition Collector to the District Horticulture Officer, requesting him to determine the market value of the apple trees. The list indicating the number of apple trees existing on the acquired land, however, was not placed on record. Therefore, in my view, his testimony does not advance the case of the claimants in any manner. Not only that during the course of the hearing of the appeal on 10th September, 2008, this Court passed the following order:- “For the public purpose, namely, construction of Pandranu-Sainj Road, the State of H.P. issued notification under Section 4 of the Land Acquisition Act, dated 29th January, 1997 and published in the Rajpatra on 22nd February, 1997 for acquisition of land comprising Khasra No.159,165,166/1,173,581, 583, 601 and 602 measuring 0-81-64 hects. From the Collector’s award No.SML-39/86 dated 25th May,1998, it is evident that compensation for the fruit growing trees on the land was not awarded for which a supplementary award was to be passed. Nonetheless in the reference petition under Section 18, the claimants’ claimed enhancement of compensation also with respect to the trees and the District Judge in terms of his award dated 3rd March, 2002 has awarded compensation of Rs.5,85,000/- towards 78 apple trees. There is nothing to show as 12 to whether the supplementary award was passed or not. This position is emerging in number of cases. Certainly non-compliance of the statutory provision is not only causing undue hardship to the land owners and depriving them of their constitutional right, but perhaps is also resulting into great financial loss and burden to the State. Let the Principal Secretary (PWD) in consultation with the Chief Secretary (PWD) to the Govt. of H.P, file a affidavit within a period of four days stating as to whether any supplementary award in terms of the Collector’s award was passed or not and if not, then reason for not passing the same. The State shall ensure that a responsible senior official is present in the court on the next date of hearing to answer the queries of the Court. List the matter on 18th September, 2008.” In compliance, the Special Secretary (PWD) filed an affidavit, inter alia stating that “as per the report of the Land Acquisition Collector, the present claimants did not issue any receipt with respect to the fruit bearing trees nor was it ever produced during acquisition proceedings and as such no supplementary award was to be passed regarding these claimants. The mention of passing supplementary award in para 3 of the Award of Land Acquisition Collector was due to production of receipts of trees by other claimants and supplementary award if any was to be passed regarding those claimants only. In these facts and circumstances there was no question of announcing any supplementary award particularly in respect of Smt. Jeevan Kumari and Sh. Baljeet Singh, land owners now respondents/ appellants in the present RFA.” 13 (Emphasis Supplied) Then on 18th September, 2008, this Court passed the following order:- “Affidavit filed by the Special Secretary (PWD) is taken on record. Let the entire record of acquisition including the MBs and the record of the District Horticulture Officer, Shimla pertaining to the appellants be produced on 29th September, 2008. If possible, response to the affidavit be filed by the claimants by that date.” This was so done, in the interest of justice, only to ensure that the claim be not rejected for want of any material which the parties may not have produced on record. The claimants did not file any response to the affidavit and on 29th September, 2008, the record was produced and examined by the Court. . The entire acquisition record, after examination, only revealed that there was nothing from which it could be inferred that 78 apple trees actually existed on the acquired land and were uprooted for the construction of the road. On the request of the claimants, the record was retained and the matter was adjourned for 29th October, 2008 to enable the claimants to examine the record in person. From the record pertaining to the land acquisition proceedings, there is nothing to prove the existence of 78 number of apple plants. In this background, bald statements of PW-1 & PW-4, in my view, would not be sufficient to prove the existence of 78 apple plants. 14 Having come to the conclusion that the claimants had not annexed any list of the plants which were uprooted from the acquired land and that there was no evidence on record with regard to the type of the apple plants over the acquired land, in my view, the Court below entered into the realm of speculation and purely on conjectures and surmises, by presuming the existence of the apple plants awarded compensation for the same. The approach adopted was totally erroneous and not based on the record. Further, the reasoning adopted by the Court below is contradictory. While dealing with the claimants claim of damage caused to the 112 apple plants, the statements of PW-1 & PW-4 were disbelieved and the court observed as under:- “In fact, there is no cogent and reliable evidence regarding the damage to 112 apple plants of the petitioners.” On the record, there was no documentary evidence to prove the existence of either 78 or 112 apple plants. Then why were the same oral testimonies of PW-1 & PW-4 not accepted while awarding compensation of 112 apple plants. The statement could not have been disected and split into two and accepted for part of the claim and rejected for the remaining part. There cannot be any piece meal acceptance of the oral testimonies of the witnesses. The learned Judge has seriously erred in determining the compensation awarded to the claimants to the 15 extent of Rs.5,85,000/- towards 78 apple plants. I have no hesitation in holding that the approach adopted by the Court below is against all canons and settled principles of Law. Reliance on Harminder Kumar Modi (supra) is misconceived. In the said case, the Court had come to the conclusion that the parties had led evidence to prove their respective cases which was purely contrary to the mandate of the Apex Court, hence, it was in these circumstances, in the absence of any other material on record, the matter was remanded back to the Tribunal for determination of the reference petition by affording an opportunity to lead evidence afresh. In Cement Corpn. of India Ltd. (supra), the Apex Court was dealing with a case where the High Court, while disagreeing with the findings of the reference court, by ignoring the other material on record, solely on the basis of exemplar Sale Deeds enhanced the market value of the acquired land. It was in these circumstances the Court remanded the matter back to consider other evidence if available on record like other sale transactions, the comparative nature of the location, suitability, marketability etc. to fix the market value of the land acquired. The record was called for and perused the same only to ensure that no injustice is caused to the claimants though the land stood acquired by the State. I have not only gone through the record of the Court below but have also examined the record pertaining to the entire acquisition proceedings. There is nothing 16 on record to prove the existence of 78 number of apple plants. The claimants failed to prove by leading cogent and reliable evidence. Hence, the matter does not merit remand at all. Even with regard to the damage caused to the Farm House and throwing a debris, there is nothing on record to prove the same. The findings of the Court below with regard to the same are reproduced as under:- “The petitioners have also alleged in the reference petition that there was a farm house over the acquired land and on account of rash and negligent digging work by the respondents, the same was damaged. The other land of the petitioners was also put to loss, as no retaining walls/breast wall was given by the respondents below the road. The petitioners have also claimed loss of Rs. Two lacs on this account. Shri Varinder Singh (PW-1) has also tried to prove the allegations regarding the loss of land of the petitioners on account of land slides. To my mind, the petitioners are entitled to Rs.50,000/- on account of loss to farm house, land slides etc.” There is no documentary evidence to prove the same. It is admitted case of the claimants that the possession of the land was actually taken in the year 1981-82; till June, 1999, no grievance was made with regard to the same before any authorities; there is no report of the Expert with regard to the existence or the extent of damage caused; even the revenue record produced by PW-7 does not reflect the said position. Hence, solely on the bald statements of PW-1 & PW-4 that 17 during construction of the road due to cutting and blasting the farm house and cow-shed had got damaged, compensation could not have been awarded. There was no other contemporaneous, corroborative, reliable and cogent material on record. For the aforesaid reasons, the findings returned by the Court below, being erroneous are set-aside. The award is modified and it is directed that the claimants shall be entitled to compensation of the market value of the land @ Rs.2 lacs per biswa. The findings with regard to the compensation of 78 apple plants and damage to Farm House/land slides, are reversed. The appeal is partly accepted. (Sanjay Karol), Judge. 25th February, 2009. (rana)