Himachal Pradesh High Court
The State Of Himachal Pradesh vs Chet Ram (Deceased) Through His Lrs And ... on 13 October, 2023
Author: Virender Singh
Bench: Virender Singh
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RFA No. 387 of 2014 Reserved on: 01.08.2023 Decided on: 13th October, 2023 .
The State of Himachal Pradesh .......Appellant Versus Chet Ram (deceased) through his LRs and another ...Respondents of Coram The Hon'ble Mr. Justice Virender Singh, Judge.
For the appellant:
rt Whether approved for reporting?1 Yes.
Mr. Mohinder Zharaick, Addl. A.G with Mr. Tejasvi Sharma, Addl.
A.G., Mr. H.S. Rawat, Addl. A.G.
For the respondents: Ms. Priyanka Dhaulta, Advocate
vice Mr. Rakesh Dhaulta,
Advocate.
Virender Singh, Judge.
The State of Himachal Pradesh has preferred the present Regular First Appeal under Section 54 of the Land Acquisition Act (hereinafter referred to as 'the Act'), against the award dated 27.07.2013, passed by the learned Additional District Judge-1, Shimla, (hereinafter referred to as the 'learned trial Court'), in Land Reference No. 18-S/4 of 2006, titled as Chet Ram and another vs. State of Himachal Pradesh.
1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 13/10/2023 20:37:46 :::CIS 2
2. Vide award dated 27.07.2013, the learned trial Court has passed the following award in favour of the respondents:
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"26. In view of my findings on issue No.1 above, the reference is allowed and the petitioners are awarded enhanced compensation as under:-
Sr.No. Enhanced compensation
1 300boxesX300=Rs.90,000X10=Rs.9,00,000/-
The petitioners are entitled for additional compensation of under Section 23 (1-A) of the Land Acquisition Act at the rate of 12 per annum from the date of publication of the notification 5.12.1997 to the date of award 21.08.2000. Apart from this, the petitioner is also entitled rt to 30 solatium under Section 23 (2) of the Act on such market value, in consideration of the compulsory nature of the acquisition. Further the petitioner is also entitled under Section 28 of the Act the interest @ 9 per annum for one year and thereafter at the rate of 15% per annum till payment. Further the petitioner are also entitled for payment of interest as per Section 34 of the Act at the rate of 9% per annum for one year and thereafter at the rate of 15% per annum."
3. For the sake of convenience, the parties to the present lis are hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court.
4. The State of Himachal Pradesh has acquired the land situated in chak Nagan, Pargana Ubadesh, Tehsil Kotkhai, District Shimla, H.P., comprised in Khasra No. 14/1 for the construction of Deem link road in village Nagan, Tehsil Kotkhai, District Shimla, H.P. Notification under Section 4 of the Act was issued on 05.12.1997, which was given wide publicity.::: Downloaded on - 13/10/2023 20:37:46 :::CIS 3
Thereafter, Notification under Sections 6 and 7 of the Act was also issued and after completion of other codal formalities, the Land Acquisition Collector has passed the award No. 8, .
bearing No. SML/1/87 on 21.08.2000.
5. Since, the petitioners were not satisfied with the award, as such, they had preferred the reference petition of under Section 18 of the Act before the Land Acquisition Collector, which was referred to the learned trial Court for adjudication.
rt The reference petition has been filed on the ground that the land bearing Khasra No. 14/1 measuring 1-13 bighas situated in chak Nagan was acquired for the construction of Deem link road, vide Notification under Section 4 of the Act dated 27.12.1997. According to them, on the spot, the respondents had constructed the road on more than 2-10 bighas of land out of Khasra No. 14. The objections with regard to the measurement were also filed by them, but, no heed was paid, in this regard. There were 50 apple trees planted over the suit land, but, no compensation of the same has been awarded to them.
6. On the basis of above facts, they have sought the market value of the fruit bearing apple trees, which, ::: Downloaded on - 13/10/2023 20:37:46 :::CIS 4 according to them, is Rs.5,00,000/-. Apart from this, statutory benefits have also been claimed.
7. When put to notice, the reference petition has .
been contested by filing reply, in which, preliminary objections with regard to maintainability and limitation has been taken.
On merits, the acquisition of the land has not been disputed.
of According to them, 1-13 bighas of land has been acquired.
They have denied that there were 50 apple trees planted over rt the suit land. It is further case of the respondents that the trees were not of bearing age and the wood of the trees was utilized by the petitioners. Re-asserting the fact that only 1-13 bighas of land has been acquired, they have taken the plea that adequate compensation has been given to the petitioners.
8. The petitioners have filed rejoinder by denying the preliminary objections, as well as, the fact that the trees were not of the bearing age and the wood of the trees was not utilized by the petitioners.
9. From the pleadings of the parties, the following issues were framed by the learned trial Court vide order dated 24.02.2007:-
1. Whether the petitioners are entitled to enhancement of the compensation? If so, to what amount? OPP.::: Downloaded on - 13/10/2023 20:37:46 :::CIS 5
2. Whether the road has been constructed on an area of more than 1-13 bighas of the petitioners' land? OPP.
3. Whether the petition is not maintainable ? OPR.
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4. Whether the petition is time barred? OPR.
5. Relief.
10. Thereafter, the parties to the lis were directed to adduce evidence and after the closure of evidence, upon of hearing the learned counsel appearing for the parties, the learned trial Court has awarded the compensation, as rt mentioned above.
11. Feeling aggrieved from the said award, the State of Himachal Pradesh has preferred the present Regular First Appeal, mainly on the ground, that the evidence adduced by the parties has been misread and mis-construed.
12. According to the appellant, the learned trial Court has wrongly came to the conclusion on the basis of Ext. PW-
6/1 to 6/6 (sale receipts) and Ext. RW-1/B, (annual average value), while assessing the value of 50 apple plants. The findings of the learned trial Court to award Rs. 9,00,000/-, on account of the apple trees, is also stated to be suffering from material irregularity and illegality, as, RW-1 Bhajan Dass, Patwari has specifically deposed that out of 50 plants, 25 ::: Downloaded on - 13/10/2023 20:37:46 :::CIS 6 plants were of one year age, 10 of two years age and 15 plants were of three years of age. The dimension of the stem recorded by Bant Raj, Junior Engineer has also not been .
considered.
13. The findings have further been assailed on the ground that from no stretch of imagination, it can be held that of the plants having 1 to 3 years could yield six boxes of apple.
The appellant has also assailed the award, by virtue of which, rt the valuation of the same has been classified as 'Bagicha Awal', as, the plants, which were there, were newly planted trees.
14. On the basis of above facts, a prayer has been made to allow the appeal by setting aside the award passed by the learned trial Court.
15. Per contra, Ms. Priyanka Dhaulta, Advocate, appearing vice Mr. Rakesh Dhaulta, Advocate, has prayed that the award does not require any interference, as, the same has been passed on the legal appreciation of evidence, as well as, the stand taken by the appellant.
16. In order to decide the controversy involved, in the present appeal, it would be just and appropriate for this Court ::: Downloaded on - 13/10/2023 20:37:46 :::CIS 7 to discuss the evidence adduced by the parties before the learned trial Court.
17. After framing of issues, Roshan Lal, who is petitioner .
No.2 in the reference petition, has appeared in the witness box as PW-1 and deposed that their 2½ bigha land was used for construction of road, whereas, only 1-13 bighas of land was of acquired. There were 50 apple fruit bearing trees over the acquired land. The age of those trees has been stated to be rt 14-15 years and they were of good quality. According to him, one apple plant used to yield 10-12 boxes of apple per year.
At that time, cost of one box was Rs.400-500/-.
17.1. This witness used to sell his apple crop under the name and style "Hill Beauty" to Chauhan Brothers, Chandigarh. He has relied upon the sale receipts Ext. P-1 to Ext. P-4. This witness has suffered loss of Rs.1,00,000-1,50,000/-
per annum, due to the construction of road, as those plant were uprooted. At the time of construction of the road, PWD authorities have issued receipt Ext. PW-1/A. When, the notice was issued, then, the objections with regard to use of more than acquired land were made. He has proved the copy of objections Ext. PW-1/B. No re-assessment with regard to compensation of the trees was made.
::: Downloaded on - 13/10/2023 20:37:46 :::CIS 817.2. This witness came to know about the passing of the award only on 10.06.2003.
17.3. According to this witness, road was constructed .
with his consent. There were total 1000-1200 trees in his orchard. This witness could not produce the record with regard to production of 2000-3000 apple boxes.
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18. PW-2 Mast Ram, Field Kanungo has conducted the demarcation of the land acquired for Deem link road vide rt report Ext. PW-2/A. According to him, 5.59 hectares land was used for construction of the road, apart from the acquired land. He has further qualified his statement by stating that the land 5.59 hectares is equal to 15 biswas. He has prepared the tatima Ext. PW-2/A. At the time of demarcation, the Road Inspector of the respondent Department was also present there. Before demarcation, no notice to the State was given, but, again stated that they were informed orally.
18.1. In the cross-examination, this witness has admitted that being Kanungo, he is aware about the fact that before demarcation, written notice is required to be given to the interested party, as per the instructions issued by the Financial Commissioner. Three pucca points were ascertained before ::: Downloaded on - 13/10/2023 20:37:46 :::CIS 9 demarcation. However, those points have not been shown in the tatima and in the report.
19. PW-3 Mohi Ram has deposed that in the acquired .
land, there were 50-60 apple plants and yield from the one is stated to be 13-14 boxes. The trees were planted in the orchard, about 25 years ago. There were 500-600 apple trees of in the orchard. Area of the orchard is 10-15 bighas.
20. PW-4 Sunder Singh deposed that on the acquired rt land, there were 50-60 trees and yield from one tree is 10-12 boxes. He has given the variety of the apple as 'royal'. In cross-examination, he has deposed that the orchard was planted 20 years ago. There were 350-400 plants.
21. PW-5 Amar Singh, Patwari, Patwar Circle, Ram Nagar. According to him, the demarcation of the land was conducted by the Kanungo about 8-9 months prior, when, this witness has appeared in the witness box on 31.01.2007 and on the direction of Kanungo, he has prepared the tatima of the land, which was actually acquired and used for the construction of the road. Total land is 0-5-59 hectares owned by the petitioners, which is in excess of the area, which was acquired for the construction of the road and the excess area ::: Downloaded on - 13/10/2023 20:37:46 :::CIS 10 has been depicted by Khasra No. 374/1. He has proved tatima Ext. PW-2/B, which was verified by Kanungo.
21.1. This witness was the person, who was handling the .
'Jareb'. On behalf of the Public Works Department, Road Inspector and a labourer were present. Kanungo recorded the statement of Road Inspector, Ext. PW-2/B, which was of prepared on the spot. He has feigned his ignorance as to whether any notice was issued to the Public Works rt Department, Road Inspector or to the labourer. Name of the Road Inspector is stated to be Jagat Ram.
22. PW-6 Virender Chauhan has deposed that the petitioners used to sell their apple crop under the name and style 'Hill Beauty Nagan', vide receipts Ext. PW-6-1 to Ext. PW-
6/4, which were the bills, issued by the brother of this witness.
According to this witness, on these documents, signatures of the proprietor or other person are not there.
23. To rebut this evidence. The respondents have examined Bhajan Dass Patwari as DW-1. He has proved the copy of award as Ext. RW-1/A and copy of one year average pertaining to the year 1996-97 Ext. RW-1/B. In cross-
examination, this witness has deposed that 50 apple trees were found on the acquired land. As per report, 25 trees were ::: Downloaded on - 13/10/2023 20:37:46 :::CIS 11 of one year, 10 trees were of two years, 15 trees were of three years. He has denied that the land measuring 2-10 bighas was acquired.
.
24. Vide order dated 3.12.2008, Junior Engineer, who has issued the receipt Ext. PW-1/A has been examined as Court witness. According to him, from 1993-2000, he remain of posted as Junior Engineer, Sub-Division, Kalbog. He has issued the receipt Ext. PW-1/A. According to him, cutting, which has rt been made with green ink, has not been done by him.
According to him, the signatures with the green ink over this document were made by the S.D.O, as such, he has stated that the cutting was done by him. Girth was entered by him.
He has again stated that cutting was done in his presence. In the document Ext. PW-1/A, he has given the Girth of 25 plants as 25", which is equivalent to 50cm. This witness has mentioned that 0.50cm, whereas, according to the S.D.O. the same should have been mentioned as .50cm. He has given the girth of the 10 apple plants as 10" and girth of 15 apple plants as 14" and according to the S.D.O., in centimeter, the same has not properly been recorded, as such, cutting has been done. All the 50 plants were fruit bearing trees. The ::: Downloaded on - 13/10/2023 20:37:46 :::CIS 12 plants having girth of 20" were of 13 years age and 14" girth were of 11 years age and 10" girth were of 8 years of age.
24.1. He has denied, in cross-examination, by learned .
counsel for the petitioners, that the age of all the plants were more than 12 years. In his further cross-examination by learned Deputy D.A., he has deposed that receipt Ext. PW-1/A was of issued on 30.01.1997. One day prior to uprooting the plants, the girth of the same was measured, however, entry was rt made on 30.01.1997, in the measurement book (MB). While replying to the query as to why new receipt has not been issued, he has deposed that no-one had demanded the new receipt, as such, the same was not issued. This witness is not a horticulture expert.
25. This is the entire evidence on record.
26. In this case, the award passed by the Land Acquisition Collector is totally silent about the amount of compensation, if any, which was paid on account trees including fruit bearing trees. In the award, there is reference with regard to the fact that the petitioners had raised objections with regard to the non-payment of compensation, on account of fruit bearing trees, which were there on the land, which was acquired. However, the award is silent about ::: Downloaded on - 13/10/2023 20:37:46 :::CIS 13 this material fact. As such, the petitioners had filed the reference, under Section 18, before the Land Acquisition Collector, which was forwarded to the learned trial Court for .
adjudication. Although, in the reference petition, the petitioners have prayed that the market value of the land with fruit bearing trees may be awarded to them, but, their main of thrust before the learned trial Court, was to get the compensation, on account of fruit bearing trees, which were rt there on the acquired land.
27. The petitioners are entitled for the amount of compensation for their fruit bearing trees situated over the acquired land. It was incumbent upon the Land Acquisition Collector, as well as, for the reference Court to assess the market value of the land after considering all the relevant facts prevailing at the time of issuance of Notification under Section 4 of the Act.
28. While assessing the market value of the acquired land at the time of issuance of Notification, the evidence should be assessed on the golden principle that the imagination should be eschewed and mechanical assessment of the evidence should be avoided, as, the object of the ::: Downloaded on - 13/10/2023 20:37:46 :::CIS 14 assessment of the market value is to arrive at a reasonable and adequate market value of the land.
29. Onus is always upon the petitioners to prove as to .
what was the market value of the acquired land at the time of issuance of Notification under Section 4 of the Land Acquisition Act.
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30. Reference in this regard can be made to the decision of the Hon'ble Apex Court in Special Land Acquisition rt Collector vs. Karigowda, 2010(3) Civil Court Cases 623. The petitioners before this Court have led the evidence, which has been discussed above. Since, the State has assailed the award and petitioners have neither filed the appeal nor cross objections, in this case. Meaning thereby, the petitioners are satisfied with the amount of compensation. In the proceedings under the Act, the procedure, as, prescribed by the CPC is to be followed.
31. It is the case of the petitioners that on the acquired land, there were 50 fruit bearing trees of apple. By examining petitioner No.2 Roshan Lal, efforts have been made to prove that the age of those trees was 14-15 years and according to him, one apple tree was yielding 10-12 apple boxes per year.
In the examination-in-chief, he has relied upon the receipts, ::: Downloaded on - 13/10/2023 20:37:46 :::CIS 15 Marks P-1 to P-4, which were proved by PW-6 Virender Chauhan. The documents Ext. PW-6/1 to Ext. PW-6/4 have been relied upon to prove that the petitioners used to yield .
the crop of Rs.1,50,000/- per year, from the trees, which were uprooted after acquiring the land of the petitioners. However, in cross-examination, this witness has taken a 'U' turn, by of stating, that the documents Ext. PW-6/1 to Ext. PW-6/4, are not of his entire orchard. No document has been produced by rt him to demonstrate that the petitioners used to sell 250-300 apple boxes per year as crop of those 50 plants In the absence of any documentary proof with regard to yield, allegedly sold by the petitioners, from their orchards, which according to PW-1, was having 1000-1200 trees, then, no inference can be drawn that the documents Ext. PW-6-1 to Ext.
PW-6/4 were of those 50 apple trees, which were uprooted by the respondent authorities, after acquisition of the land.
32. No doubt, petitioners are entitled for compensation for fruit bearing trees, but, for that, evidence should be clear and convincing. Since, the petitioners have not filed appeal or cross objections, with regard to the findings on issue No.2, as such, evidence of PW-2 is not liable to be considered. Even otherwise, the demarcation conducted by ::: Downloaded on - 13/10/2023 20:37:46 :::CIS 16 this witness does not meet the statutory requirement for conducting the demarcation, as, no notice was ever issued to the official respondents.
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33. PW-3 Mohi Ram has taken an over cautious approach, by deposing that there are 50-60 trees over the acquired land and one apple plant was yielding crop of 13-14 of apple boxes per year. Contrary to the stand taken by PW-1, he has given the age of those plants as 25 years. Hence, his rt evidence is not required to be considered, in this case.
Similarly, oral evidence of PW-4 is not liable to be considered, keeping in view the variation with regard to proof of the total plants in the orchard, as well as, their age.
34. From the evidence of RW-1, one thing is proved, in this case that 50 apple trees were there. According to him, 25 trees were of one year, 10 trees of two years and 15 trees were of 3 years. There is nothing, in the award, passed by the learned trial Court, as to why the deposition made by this witness has not been accepted, who is a public servant and deposed on the basis of record.
35. Even, from the document Ext. PW-1/A, it has been proved that there were total 50 plants. This document has been issued by the Junior Engineer, who has been examined ::: Downloaded on - 13/10/2023 20:37:46 :::CIS 17 as Court witness as CW-1. From this document, one fact has been proved that there were 50 trees, but, so far as the age of those trees is concerned, in view of cutting made, in this .
document and explanation given by CW-1, this Court is of the view that the learned trial Court has assessed the amount of compensation, which is on a much higher side.
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36. According to the deposition of this witness, the average life of those apple trees comes to 11 years.
37. rt In view of the evidence of this witness, this Court is of the view that the total number of apple boxes, which was assessed by the learned trial Court, as total yield from those 50 trees could be 150 boxes and value of the same, if taken, as assessed by the learned trial Court, the same comes to Rs.
150X300=Rs.45,000/-.
38. By using the multiplier of 10, as applied by the learned trial Court, the amount of compensation comes to Rs.4,50,000/-.
39. In view of the discussion made above, the appeal is partly allowed, by reducing the amount of compensation from Rs.9,00,000/- to Rs.4,50,000/- along-with statutory interest, as awarded by the learned trial Court.
::: Downloaded on - 13/10/2023 20:37:46 :::CIS 1840. The appeal is disposed of in the aforesaid terms.
Pending applications, if any, also stand disposed of.
41. Record be sent down.
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October 13, 2023 ( Virender Singh )
(naveen) Judge
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