IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
It is a settled position of law that land reference petition is
like a suit in which the claimants, as plaintiff have to stand on their
own legs to prove his case.
RFA No. 293 of 2004 alongwith
Cross Objection No. 4 of 2005
Sh. Nokh Ram and others
Appellants
Versus
State of H.P. and another.
Date of Decision : May 18, 2009
Coram:
Hon’ble Mr. Justice Sanjay Karol, Judge.
The present appeals are being disposed of by a common
judgment for the reason that the common evidence was led by the
claimants and the Court below has passed separate but identical
awards. They were heard and taken up together and record of Land
Referecne Case No. 39-S/4 of 2000, titled Nokh Ram and others vs.
State of H.P. and another, against which Appeal No. 295/2004 has
been filed, has been perused.
For the public purpose namely construction of Dargi Sohal-
Nehra road possession of the petitioners’ land, even as per the
Collector’s Award was taken over prior to 1st July, 1993. However,
notification dated 28.7.1997, issued under Section 4 of the Land
Acquisition Act, 1894 (hereinafter referred to as the Act) acquiring
the land, was published in the H.P. Rajpatra on 13.9.1997.
The
Collector’s Award No. 13 of 1999, under Section 11 of the Act, was
issued on 28.12.1999.
The Collector assessed the market value of the acquired land
classification/category wise as under:
Tehsil Name Mauja Nature of land Sunni 1. Kiyar Doem Rs. 15,300.00
2. Bakhal Abal Rs. 9,180.00
3. Bakhal Doem Rs. 5,620.00
4. Tikkar Abal Rs. 3,060.00
5. Tikkar Deom Rs. 1,530.00
6. Banjar Rs. 1,530.00
7. Ghasni/Toda Rs. 1,020.00
Panyali
Assessed value per Bigha
Aggrieved by the same the claimants filed various Land
Reference Petitions seeking enhancement of the compensation.
Based on the pleadings of the parties the Court framed the following
issues:
“1.
Whether the compensation paid to the petitioners is not
just and proper?...OPP
2.
In case issue No.1 is proved in affirmative, to what
enhanced
compensation
the
petitioners
are
entitled?...OPP
3.
Relief.”
Opportunity to lead evidence was afforded to the parties. It
is a matter of record that the claimants examined nine witnesses
and State did not lead any evidence except for tendering copy of the
sale deed Ext. R1.
Appreciating the material on record the Court below rejected
the claimants prayer for enhancement of the market value of the
acquired land as it found that the sale deeds Ext.P8 and Ext.P9,
produced on record by the claimants, could not be relied upon to
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determine the true market value as they did not pertain to the place
of acquisition of the land and also there was nothing on record to
show the comparability of the exemplar sale land with the acquired
land situated in village Panohi.
On the question of damage caused to the petitioners’ land
adjoining to the acquired land, the Court found that in the absence
of any cogent and convincing evidence/material on record to prove
the same no compensation could be awarded.
On the question of compensation for the trees existing on the
acquired land, based on the evidence led by the parties, except for
in one case, the Court below rejected the claimants’ contention as
no cogent and reliable material was led by the claimants. In the case
of claimant Shri Nokh Ram s/o Shri Seria, in Land Reference No.
39-S/4 of 2000 relying upon the admission made by the State itself,
that 17 trees of Khair, Beul and Tunni were in existence on the
acquired land, based on the valuation report on record, the Court
below assessed compensation of Rs. 8,388/-.
However, by referring to and relying upon the decision of this
Court in Smt. Gulabi vs. State of H.P., 1998 (1) Shim. L.C. 41, the
Court below uniformally applied the rate awarded by the Collector
for the best category of land i.e. ‘kiyar don’ which was assessed at
Rs. 15,300/- per bigha.
Thus the claimants petition was partly
allowed and all the claimants were held entitled to the market value
5
@ Rs. 15,300/- per bigha for the acquired land irrespective of its
classification or category.
While awarding compensation under Section 23(1)(a) of the
Act the interest was awarded from the date of award which is
31.5.2004, same in all the cases.
A chart showing particulars of all the claimants is as under:
Sl. No. Land
Reference No.
1. 40-S/4 of 2000
2. 38-S/4 of 2000
3. 39-S/4 of 2000
4. 44-S/4 of 2000
Name
of Date of Award
Petitioner(s)
passed by the
District Judge
Sh. Nokh Ram 31.5.2004
and others.
Sh. Gosau
31.5.2004
Ram
Sh. Nokh Ram 31.5.2004
and others.
Sh. Sant Ram
31.5.2004
and others
RFA No.
293 of 2004
294 of 2004
295 of 2004
300 of 2004
Mr. Ramesh Sharma, learned counsel for the appellants has
assailed the impugned award for the reason that the Court below
erred in not relying upon sale deeds Ext. P-8 and Ext. P-9. Sale deed
pertaining to small parcel of land or of adjoining villages can be
considered for determining market value of the acquired land
particularly when, admittedly there were no sale instances in village
Panohi where the acquired land was situate. The Court further
misdirected itself by not correctly appreciating the evidence in
entirety while rejecting the claim for compensation of trees.
Further interest on the enhanced compensation ought to have
been awarded w.e.f. 13.9.1997, the date of publication of the
notification in the Himachal Pradesh Rajpatra instead of the date of
the award as wrongly awarded by the Court below.
In support of his contentions he has referred to the following
decisions:
H.P. Housing Board versus Bharat S. Negi and Ors., Latest
HLJ 2004 (2) SC 1245; State of H.P. versus Roop Chand Malhotra
and others, Latest HLJ 2003 (2) HP 1260; Land Acquisition Collector
versus Puran Ram, Latest HLJ 2008 (1) HP 660; Atma Singh (Dead)
through LRs and others versus State of Haryana and another,
(2008) 2 SCC 568; Defence Estate Officer versus Faizunnisa and
others, (2006) 9 SCC 162.
Per contra Mr. Vivek Thakur, learned Additional Advocate
General ably assisted by Mr. Anil Jaswal, learned Deputy Advocate
General has supported the award for the reasons set out therein.
He fairly invited my attention to the ratio of law laid down by the
Apex Court in Lila Ghosh versus State of West Bengal, (2004) 9 SCC
337, in terms of which interest ought to have been awarded from
the date of publication of the notification under Section 4 of the Act,
and not from the date of the award.
There is no dispute on the proposition of law that even sale
deeds pertaining to small transactions can be considered for
determining their compensation. This of course is subject to certain
conditions as laid down by the Apex Court in Chimanlal
Hargovinddas versus Special Land Acquisition Officer, Poona and
another, AIR 1988 SC 1652.
It is also not in dispute that awards and sale transactions of
adjacent and adjoining village can be considered if however there is
evidence to prove the comparability of the exemplar land with that
of the acquired land. [Union of India versus Harinder Pal Singh and
others, 2005 (12) SCC 564 and Executive Engineer and another
versus Dilla Ram, Latest HLJ 2008 (HP) 1007] But this of course can
be done only in the case of proven fact that no sale transactions
took place in the area where the acquired land is situate.
In the present case the Collector has referred to and relied
upon the transactions pertaining to village Panyali, apparently for
the reason that there was no sale instances or other evidence to
prove the market value of the acquired land situate in village Panohi.
Petitioner through Shri Harish Kumar (PW-6) has proved on
record sale deed Ext.P-8. Three biswas of land was sold for a sum
of Rs. 41,000/- on 7.6.1997. This witness has however admitted
that on the land three shops stand constructed as it is adjacent to
the road.
From the evidence of both Shri Harish Kumar (PW-6) and Shri
Paras Ram (PW-2) it is evident that the said exemplar land is infact
closer to Sunni bazaar whereas the acquired land is situated in a
remote village Panohi. Judicial notice can be taken of the fact that
headquarter of the Tehsil are located at Sunni. Therefore, the Court
8
below rightly did not consider the said exemplar sale deed for the
purposes of determining the true market value of the acquired land.
Shri Prem Lal (PW-7) has proved sale deed Ext. P-9 whereby
three biswas of land was sold for a sum of Rs. 3000/- on 4.2.1997.
This witness has only stated that the exemplar land is nearer to
village Panohi.
Simply because the aforesaid witnesses have deposed that
exemplar land is nearer to village Panohi and far of from village
Panyali that by itself would not advance the claimants case as there
is no evidence to prove the comparability of the acquired land with
that of the exemplar sale land. Regretfully there is no evidence on
record to prove the similarity of the potential, use and nature of the
two lands. Hence in the absence of any cogent, reliable and
convincing material to prove that the market value of the acquired
land is higher than what was determined by the collector while
awarding compensation, no enhancement can be made as claimed
by the appellants herein.
It is a settled position of law that land reference petition is
like a suit in which the claimants, as plaintiff have to stand on their
own legs to prove his case.
In this view of the matter judgments referred to and relied
upon by the learned counsel for the claimants in Bharat S. Negi
(supra), Roop Chand Malhotra (supra), Puran Ram (supra), Atma
Singh (Dead) through LRs (supra) and Faizunnisa (supra) are not
relevant and have no bearing on the present case.
On the quantum of compensation towards trees I am of the
considered view that the findings returned by the Court below are
based on proper appreciation of complete material and no fault can
be found with the same. They are neither perverse nor illegal.
Claimant in RFA No. 295 of 2004, filed Civil Writ Petition No.
663/2002 before this Court stating as under:
“That the respondents took the possession of the said
land of the petitioners for the construction of Dargi-Sohal-
Nehra road on 1.7.1993 and cut down about 200 KHAIR trees
standing over the said land. The classification of the KHAIR
trees which were cut is as under:
Sappling Plant
Class V trees
Class IV trees
Class III trees
40
50
70
40”
The respondent/State in response thereto stated as under:
“That the contents of para No. 3 are admitted to the
extent that the land of the petitioners have been used for the
construction of Dargi Sohal Nehra road during 1993. But it is
denied that 200 number trees of Khair were cut/uprooted by
the respondent department. There were no trees on the spot
as alleged except mentioned in para-6 and as such no
entry/receipt was given by the respondent department to the
petitioner at the time of construction of above named road.”
“... ... ... when the spot measurement was carried out
the following trees found on the spot on the acquired land
which belongs to the petitioner and other co-sharers.
10
Khasra No.
Old
/
No. of trees. Kind of trees.
New
444/1 553 2 Khair
424/1 644/2 1 Bewal
398/1 552/1 2 Tuni
418/1 595/1 3 411/1 562/1 9
Khair
1
Fegra
1
Kangoo
1
Khair ”
The said petition was disposed of vide orders dated 24.3.2003
when this Court directed as under:
“During the course of hearing, it transpired that
Reference under Section 18 of the Land Acquisition Act
against the quantum awarded by the Collector is pending
before the District Court. In this view of the matter, we hold
that this petition is not maintainable and we also observe
that it shall be open to the petitioner to bring to the notice of
the Reference Court all the points urged herein and also to
lead evidence in support of those points, if so required. We
direct the Reference Court to consider all such points and
deal with them in the final judgment.
The writ petition stands disposed of.”
Shri Besar Dass (PW-9) Tehsildar has deposed that as Field
Kanungo, Sunni he demarcated the acquired land in the presence of
Forest Guard and Junior Engineer. He carried out the demarcation
as per Ext.P-7 which bears his signatures.
In cross examination, however, he has admitted that Ext.P-7
is not the demarcation report. The same has not been proved on
record. Hence there is no documentary evidence of demarcation of
the acquired land.
11
Ext. P-7 reads as under:
“List of trees standing on the land comprising of the following
khasra No. owned by Sh. Nokh Ram s/o Sirya Ram R/o Vill.
Panohi, Moja Panohi, Teh. Suni, Distt. Shimla H.P. now acquired
by HPPWD for the construction of Road, Chanawag beat, Suni
Block, Bhaji Range Suni.
Sr.
No.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
Kh. No.
Area
DiA Class
Tuni
Beer B/L
Khair
Khair
Khair
Khair
Khair
Khair
Khair
Beer B/L
Khair
Khair
Khair
Khair
552
-do-
-do-
-do-
553/1
-do-
-do-
571/2
-do-
-do-
-do-
644/1
595/1
-do-
Spp. 21/22 IV
17/18 V
21/22 IV
12/13 V
22/23 IV
24/25 IV
14/15 V
11/12 V
11/12 V
11/12 V
13/14 V
13/14 V
21/22 IV
13/14 V
ABRACT
Spp.
Tuni
Beer B/L
Khair
V
-
2
7
IV
1
-
4
Total
1
2
11
G-TOTAL 14 Trees.
Besides the above trees the following numbers of seppling are
also standing over the area:
Seppling:
Tuni,
3
Kangu B/L,
4
Dharu, Bheul,
4 12
TOTAL
Beer B/L,
1
Kakar,
1
Khair,
9
= 36 No.
Kayal
2
Certificate:
1.
Certified that the area has been demarcated on the spot
jointly by Revenue, Forest and PWD Departments.
2.
Only the trees standing on the private land comprising of
the khasra Nos. mentioned above has been enumerated and no
tree of adjoining Forest/Govt. land has been enumerated.
Sd/-
Block Forest
Officer Suni
Sd/-
Forest Guard
I/C Chanawag, Beat
Sd/-
F/Kanungo
Suni
Patwari
Sohal
12
(c/s) Sd/-
Range Forest Officer
Bhaji Forest Range
Sunni (HP) ”
It cannot be said that Shri Besar Dass (PW-9) is the author of
the said document .
Shri Bhup Ram Sharma (PW-4) Range Forest Officer, Sunni
has deposed that while being posted as Forest Ranger he got the
acquired land demarcated in terms of report Ext.P-7 which bears his
signatures. As per the report on the acquired land there exists 1
tree of tunni, 11 trees of khair, 2 trees of buel and 36 saplings of
other varieties are there on the site.
However, in his cross
examination he admitted that he had simply counter signed the
report as he did not visit the site.
His testimony, therefore, is of no consequence.
Shri Puran Chand Sharma (PW-8) Retired Deputy Ranger has
simply proved the report Ext.P-11 and Ext.P-12 assessing the value
of the trees contained in report Ext.P-7 at Rs. 13,503/- and Rs.
8,388/- respectively.
Except for the bald statement made by claimant Nokh Ram
(PW-1) there is no cogent and reliable material on record to prove
the actual existence of the claimed number of trees on the acquired
land. Shri Besar Dass (PW-9), Shri Puran Chand (PW-8) and Shri
Bhup Ram (PW-4) did not visit the spot. The persons who carried
out the demarcation and prepared the said report have not been
examined in the Court. Therefore not much reliance can be placed
13
upon report Ext. P-7. There is no evidence to prove loss of trees
except for the admission made by the State. The court below has
already awarded compensation of Rs. 8388/- based on the
admission made by the respondent/State.
That apart not much reliance can be laid on the said report
for the simple reason that in the civil writ petition it was the
claimants’ own case that 200 trees of Khair had been cut at the time
of the construction of the road. This plea makes the correctness of
the report (Ext. P-7) to be doubtful. It was not the claimants’ case
that some of the uncut trees had been left out and were still
standing on the acquired land.
With this position on record not
much reliance can be placed on the evidence led by the claimants.
The contention of the learned counsel for the appellant thus
needs to be rejected.
However, keeping in view the decision of the Apex Court in
Lila Ghosh (supra) the impugned award is modified to the extent
that the claimants shall be entitled to interest from the date of the
publication of the notification i.e. 13.9.1997 and not from
28.12.1999 i.e. the date of the award.
The appeals are partly allowed and cross-objections are
dismissed.
(Sanjay Karol),
Judge.
May 18, 2009
(PK)
14
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