IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No. 216 of 2004 Reserved on: November 24, 2008 Date of Decision : December 23, 2008 State of H.P. and another …Appellants. Versus: Chattar Singh and others …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellants: Mr. R. K. Bawa, A. G. with Mr. Vivek Thakur, Addl. A. G. For respondent No.1 : Mr. D. N. Ronta, Advocate. For respondents 2 to 11: None SANJAY KAROL, JUDGE (Oral). The State of H.P. is aggrieved of the impugned Award dated 1.4.2003, passed by the Addl. District Judge, Shimla, H. P., in Land Reference No.22-S/4 of 2001, titled as Chattar Singh vs. State of H.P. & another. For the public purpose, namely, ‘construction of Chamaru Link Road’, the claimants land comprising Khasra No. 815/1, measuring 0-02-84 hectares situate in Chak Chamaru, Tehsil & Distt. Shimla, H. P., was acquired by the State of H.P. Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’) was published in the H. P. Rajpatra on 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 20.7.1996. The Collector’s Award (Case No.SML-1/91), under Section 11 of the Act was issued on 12.10.1999. It is admitted case of the parties, as is evident from the Collector’s Award that in Village Chamaru, where the acquired land was situated, there were no sale transactions, hence, the Collector called for the yearly average rates of the adjoining village Sundali and his recommendation, based on the same was accepted by the Government and in terms of the Award, the Collector determined the market value of the acquired land category-wise as under:- Classification of land Rate per bigha (in Rupees) Kiar Awal 58,064.60 Kiar Doyam 54,435.40 Kalahu Doyam 36,290.20 Bakhal Awal 31,209.60 Bakhal Doyam 26,129.60 Karali Awal 22,500.00 Karali Doyam 18,145.00 Kheda 9,,435.40 Ujari 4,354.80 The Collector recorded that in the absence of any proof of existence of any kind of fruit bearing trees, no compensation could be separately assessed and awarded for the same. Aggrieved by the same, the claimants filed a Land Reference Petition under Section 18 of the Act. Opportunity to lead evidence was afforded and the following issues were framed by the District Judge:- 3 1. Whether the petitioner is entitled for enhancement of compensation, as alleged? ……..OPP 2. Whether the petitioner was in exclusive possession of acquired land on the basis of family partition as such exclusively entitled to compensation? ….OPP Appreciating the material on record (oral and documentary), the Court below enhanced the compensation payable to the claimants by determining the market value of the land to be Rs.60,000/- per bigha regardless of the category and classification of the land. A sum of Rs.89,505/- was also awarded towards 12 apple trees which were uprooted at the time of construction of the road. I have heard the learned counsel for the parties and also perused the record. Mr. Vivek Thakur, learned Addl. Advocate General has assailed the Award on the ground that the compensation towards the fruit bearing trees has been wrongly assessed and awarded to the claimants. In any event, the compensation assessed both towards land and the fruit bearing trees is much on the higher side. Mr. D. N. Ronta, learned counsel for the claimants has supported the Award for the reasons set out therein. I have heard learned counsel for the parties and also perused the record. That the claimants land was acquired is not in issue. The area and the extent is also not disputed. The Collector himself observed that that there was no material on record to sufficiently 4 prove the market value of the land in village Chamaru, hence, he called for the rates of the adjoining village, namely, Sundali. The Apex Court in Thakarsibhai Devjibhai and others vs. Executive Engineer, Gujarat and another (20201) 9 SCC 584 and Special Land Acquisition Officer, Devangere vs. P. Veeranhadarappa and others, (1984) 2 SCC 120 has held that the yearly average report is maintained for the purpose of collection of revenue under the Stamp Act. S/Shri Chattar Singh (PW-1), Balwant Singh (PW-5) and Trilok Singh (PW-6) have proved on record the Sale Deeds Ext.PW- 1/E & Ext.PW-1/E. In terms of both the Sale Deeds, 5 biswas of land, each situate in village Sundali was sold for a sum of Rs.20,000/- and Rs.25,000/-. Importantly, the land in terms of Sale Deed Ext.PW-1/E was sold to the Government Society. The transactions pertain to the year 1995-96. There cannot be any dispute with regard to the genuineness of the sale transactions. Between the year 1995/96 and the year 1999, there may have been some increase in the value of the land and judicial notice can be taken note of in this regard. The claimants have undisputedly brought on record the fact that the possession of the land was actually taken by the Government in the year 1990 when the road in question was constructed. Therefore, at the time of initiation of the acquisition proceedings, the adjoining land was accessible by road cannot be disputed. 5 The similarity, potentiality and the use of the acquired land with that of the exemplar sale land, to my mind, cannot be doubted in the facts and circumstances of the present case. The claimants land is fertile and was put to agricultural/ horticultural use. The Court below, has rightly accepted the sale transactions for the purposes of determining the market value and come to the conclusion that the market value of the acquired land on the basis of the exemplar sale transactions would be approximately Rs.80,000/- to Rs.1,00,000/- per bigha. Since the sale transactions pertain to the adjoining village, therefore, after applying the principles of law laid down by the Apex Court in State of Haryana vs. Ram Singh (AIR 2001 SC 2532) and Land Acquisition Officer vs. Narasaiah (AIR 2001 SC weekly 867), the Court reduced the aforesaid amount by 25% and arrived at a figure of Rs.60,000/- per bigha. I find that there is no error in the same. The compensation has to be awarded to the claimants which is just, fair and reasonable. The existence of 12 apple trees on the acquired land has been sufficiently proved by the claimants through the statements of S/Shri Chattar Singh (PW-1), D. K. Verma (PW-2) and B. S. Bajwa (PW-4). PW-2 has proved on record the Measurement Book (MB) from which it is evident that the aforesaid plants were uprooted at the time of construction of the road. The receipts with regard to the same, issued by the Public Works Department of the State (HPPWD) (Ext.PW-1/A) & MB (Ext.PW-1/K) also stand proved. Therefore, the 6 Collector in his award, was not right in observing that no trees had been uprooted. This Court in Collector, LAC Mandi vs. Karam Singh (Latest HLJ 2000 HP 694) has held that the trees can be separately assessed for the purposes of determining the compensation payable to the claimants. The assessment as per the H.P. Land Records Manual, is to be carried out on the basis of Harbans Singh Formula of 1966 which is uniformly applied by the State of Himachal Pradesh for the purposes of assessing the damages to the fruit bearing trees. This fact, has been fairly accepted by the learned Addl. Advocate General. Based on the said Formula, Shri B. S. Bajwa (PW-4) an Expert (Retd. Dy. Director, Horticulture, Himachal Pradesh) has proved the damages assessed by him vide Report (Ext.PW-1/A). The assessment was carried out on the basis of the Harbans Singh Formula as per the price index, as applicable for the year 1966. The report shows that a sum of Rs.9,945/- was the assessment carried out with respect to 12 number of plants falling to the share of the claimant. That claimants would also be entitled to enhancement due to the increase in the escalation of the consumer price index between the year 1966 and the year of the acquisition already stands decided by this Court in Collector, LAC Mandi (supra). Shri R. S. Chauhan (PW-3) has proved on record the increase in the consumer price index Ext.PW-3/A from which it is evident that the increase between the year 1966 and 1996 is of 7 960%. The Court below, in my view, has rightly considered the same and enhanced the sum assessed by nine times. The same has been done as per the ratio of law laid down in Collector, LAC, Mandi (supra). The entire land is to be utilized for the purpose of construction of road. It is not a case that some part of the land is to be wasted or left out for carrying out any development activities. While determining the question as to whether the principle of deduction at the time of determining the market value of large track of land on the basis of exemplar of small piece of land is to be carried out or not, the Apex Court in Atma Singh and others v. State of Haryana and another (2008(2) SCC 568) after considering its earlier decisions rendered in Administrator General of W.B. v. Collector, Varanasi (1988(2) SCC 150), Bhagwathula Samanna v. Special Tehsildar & Land Acquisition Officer (1991(4) SCC 506), Administrator General of W.B. v. Collector, Varanasi (2003(1) SCC 354), Chimanlal Hargovinddas v. Special Land Acquisition Officer (1988(3) SCC 751), Basant Kumar v. Union of India (1996(11) SCC 542), K. Vasundara Devi v. Revenue Divisional Officer(LAO) (1995(5) SCC 426), H.P. Housing Board v. Bharat S. Negi (2004(2) SCC 184) drew a distinction and held that unlike the land acquired by the Housing Board for setting-up of a Colony, the land acquired for the purpose of setting-up a sugar factory, no deduction at all was required to be made and the exemplar of small parcel of land can be considered for determining the market value of the acquired land. The Court held that where the land is to give substantial 8 returns, there is no justification for making any deduction from the price exhibited by the exemplars even if they are of small plots. In Union of India v. Harinder Pal Singh and others (2005(12) SCC 564), while determining the compensation for acquisition of land pertaining to five different villages, the Apex Court uniformly awarded a sum of Rs.40,000/- per acre irrespective of the classification and the category of the land. Further, in Nelson Fernades v. Special Land Acquisition Officer (2007(9) SCC 447) while dealing with the case where the land was acquired for laying a Railway line, the Court held that no deduction by way of development charges was permissible as there was no question of any development thereof. Therefore, in my view, the Court below has rightly arrived at its conclusion that the market value so determined has to be uniformly applied to the entire acquired land. The claimants shall be entitled to all statutory benefits from the date of publication of the Notification in accordance with law and as per ratio of law laid down by the Apex Court in Sunder vs. Union of India (2001(7) SCC 211). There is no illegality or irregularity in the impugned award. The entire material has been considered and correctly appreciated. For the aforesaid reasons, the appeal is dismissed. (Sanjay Karol), Judge. December 23, 2008. (rana)