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Himachal Pradesh High Court · body

1997 DIGILAW 128 (HP)

STATE OF K. P. v. SHISHI RAM

1997-04-21

KAMLESH SHARMA, R.L.KHURANA

body1997
JUDGMENT Kamlesh Sharma, J. (Oral) :- In this appeal the1 State of Himachal f Pradesh has challenged only that part of the award dated 30.4.1987, passed by the District Judge, Shimla. whereby enhanced amount of Rs. 10,000/-has been awarded to the respondents-claimants as market value of the fruit trees which were uprooted during the course of construction of Astani link road. The respondents-claimants have also filed cross-objections claiming further enhancement of Rs. 20,000/- towards the market value of the fruit trees over and above the amount awarded by the District Judge. 2. The admitted facts in brief are that land comprised in Khasra No. 2587/611/1 measuring 2-4 bighas belonging to respondent-claimant Shishi Ram and land comprised in Khasra No. 611/14/1 measuring 0.15 biswas belonging to respondent-claimant Raj am Devi, wife of respondent-Shishi Ram, situated in Mauza Astani, Tehsil Rohru, District Shimla, was acquired for the construction of Astani link road by notification dated 1.5.1980 issued under Section 4 of the Land Acquisition Act (hereinafter called the Act). The Land Acquisition Collector by his award dated 6.3:1983 awarded a sum of Rs.2089-78 paise to respondent-claimant Shishi Ram and Rs.431-25 Paise to respondent-claimant Rajam Devi, wife of Shishi Ram, as compensation of the land. The respondents-claimants did not file reference under Section 18 of the Act against this award. Thereafter, by a supplementary award dated 5.3.1984, the Land Acquisition Collector awarded compensation of Rs. 16009-15 including 15% C.A.C. as market value of 33 standing fruit trees. The respondents-claimants have filed reference under Section 18 of the Act against the supplementary award but claimed enhancement of the market value of the land .at the rate of Rs 20,000/- per bigha besides the enhancement of the market value of the fruit trees to Rs. 61,000/-. According to them, the total number of fruit trees, which were standing at the time of notification under Section 4 of the Act, was 61 of the ages of 7 to 9 years. The appellants in their reply have denied that the market value of the fruit trees, as claimed by the respondents-claimants, but admitted that as per the statement of Executive Engineer, H.P. P.W.D. Rohru, who will represented the department during the hearing of objections. The appellants in their reply have denied that the market value of the fruit trees, as claimed by the respondents-claimants, but admitted that as per the statement of Executive Engineer, H.P. P.W.D. Rohru, who will represented the department during the hearing of objections. 61 fruit trees were involved in acquisition out of which 28 fruit trees got uprooted and only fruit trees were standing at the time of spot inspection by the Land Acquisition Staff, the market value of which was got assessed by the experts of Horticulture Department and paid to the respondents-claimants. It is also that compensation of 28 up-rooted fruit trees would be paid to the respond getting their assessment made from the Horticulture Department. It is decree in the reply that the market value of the acquired land is correctly assessed by the Land Acquisition Collector. 3. After framing issues and re-correcting evidence, the District Judge confirmed the market value of the land determined by the Land Acquisition Collector and enhansed the market value of the fruit trees by an amount of 10,000/- on the ground that admittedly market value of 28 fruit trees which were found on the acquired land in addition to 33 fruit trees was not assessed and paid. Though the District Judge was aware of settled legal position that the market value of the fruit trees was not required to be assessed separately than) the market value of the acquired land and there being an orchard on the acquired land its market value was required to be assessed as an orchard yet in absence of any evidence on record in respect of income from the orchard District Judge could not adopt the method of capitalization for assessing market value of the acquired land and has assessed the market value of acquire land and has assessed the market value of the acquired land and trees separately. 4. We have heard learned counsel for the parties and gone through the record. We may like to reiterate the settled legal position that since the compensation is to the value of the acquire land which includes the value of the fruit trees standing thereon the market value of acquired land and fruit trees cannot be assessed separately. It was made clear by the Supreme Court in its judgment in Chaturbhuj Pande & Ors. We may like to reiterate the settled legal position that since the compensation is to the value of the acquire land which includes the value of the fruit trees standing thereon the market value of acquired land and fruit trees cannot be assessed separately. It was made clear by the Supreme Court in its judgment in Chaturbhuj Pande & Ors. v. Collector, Rajgarh, AIR 1969j Supreme Court 255 that value of trees as are on the land when the declaration, is made under Section 6 of the Act must be included in the market value of the land which means that the market value of the acquired land is not be assessed separately than the market value of the trees standing thereon. Referring to Section 3 (a) of the Act, which prescribes that "the expression land includes benefits to arise out of the land, and things attached to the earth or permanently fastened to anything attached to the earth" it observed that the trees standing on the acquired land are its component part and their value is ascertained only for the purpose of fixing the market value of the land. Further in State of Haryana v. Gurcharan Singh & Anr., 1995(1) Scale 530, the Supreme Court has elaborated that; "It is settled law that the Collector or the Court who determines the compensation for the land as well as fruit bearing trees cannot determine them separately. The compensation is to the value of the acquired land. The market value is determined on the basis of the yield. Then necessarily applying suitable multiplier the compensation need to be awarded. Under no circumstances the Court should allow the compensation on the basis of the nature of the land as well as fruit bearing trees. In other words, market value of the land is determined twice over and one on the basis of the value of the land and again on the basis of the yield got from the fruit bearing trees. The definition of the land includes the benefits to arise from the land as defined in Section 3(a) of the Act. After compensation is determined on the basis of the value of the land from the income applying suitable multiplier, then tin, trees would be valued only as fire-wood and necessary compensation would be given". 5. The definition of the land includes the benefits to arise from the land as defined in Section 3(a) of the Act. After compensation is determined on the basis of the value of the land from the income applying suitable multiplier, then tin, trees would be valued only as fire-wood and necessary compensation would be given". 5. Coming to the case in hand, we find that land Acquisition Collector not aware of above stated settled legal position and he has not only assessed market value of the acquired land and fruit trees separately but also has given two separate awards in respect thereof. Even before the District Judge, e respondents-claimants have not produced any evidence worth the name to we the income from the orchard standing on the acquired land, as such, the market value of the acquired land cannot be assessed by applying the method "capitalization. Had the income from the orchard been established on record, the market value of the acquired land could be determined by applying the multiplier of 8 years as held in State of Haryana v. Gurcharan Singh & Ors. (supra). Therefore, in the absence of such evidence it is to be examined whether the market value of acquired land as determined by the Land Acquisition Collector and confirmed by the District Judge plus the market value of the fruit trees standing thereon as awarded by the Land Acquisition Collector and enhanced by the District Judge can be held as just compensation for the acquired land. The two sales transactions, Ext. PW-l/A and PW-7/A produced and proved by Roshan Lal (PW-1) and Krishan Lai (PW-7) are not comparable with the acquired land. Both the sales transactions are not proximate to the acquired land in respect of time as well as the location. Admittedly, PW-l/A is of 1978 and pertains to the land which is at a distance of 20 kilometers from the acquired land and PW-7/A is of 1984. There is no other evidence on record which can form basis of determining the market value of acquired land which was admitted an orchard situated at a distance of 3/4 kilometers from the bazar of Rohru, which is a Tehsil Headquarter. Therefor*, the District Judge has rightly not enhanced the market value of the acquired land. 6. There is no other evidence on record which can form basis of determining the market value of acquired land which was admitted an orchard situated at a distance of 3/4 kilometers from the bazar of Rohru, which is a Tehsil Headquarter. Therefor*, the District Judge has rightly not enhanced the market value of the acquired land. 6. In view of the admission of appellant that there were 28 fruit trees which stood up-rooted during the course of construction of Astani link Road and the list of plants given by Assistant Engineer, H.P. P.W.D., Ext.PW-8/A, this Court has no hesitation to hold that there were 61 fruit trees whereas the market value of only 33 fruit trees was determined and paid to the respondents-claim ants "by the Land Acquisition Collector and the market value of remaining 28 fruit trees has been assessed at Rs. 10,000/- by the District Judge in the impugned award. In view of the admission of the appellants in their reply to the reference petition that the respondents- claimants are entitled to the compensation of 28 fruit trees which will be paid to them after getting the assessment done from the Horticulture Department they cannot dispute that the number of fruit trees was not 61 and the respondents-claimants have wrongly been given compensation for 28 fruit trees. Their grievance can only be that the market value of 28 fruit trees assessed by the District Judge is on the higher side but we do not find any substance in it as they themselves had assessed the market value of 33 fruit trees at Rs. 13,921/- which was paid by the Land Acquisition Collector. The District Judge has rightly awarded the amount of Rs. 10,000/- as market value of 28 fruit trees without going into their ages as these were planted "on the acquired land alongwith those 33 fruit trees. In the absence of any evidence on record to determine the market value of fruit trees, we have approved the market value of fruit trees awarded by the District Judge keeping in view the market value of 33 fruit trees awarded by Land Acquisition Collector, who had made his award in respect of fruit trees on the basis of assessment u£ Horticulture Department and dismissed the claim of respondents-claimants for enhancement. Therefore, we hold that the market value of the acquired land including the market value of fruit trees standing thereon a assessed by Land Acquisition Collector and the District Judge is fair and just compensation for the acquired land. 7. In the result, we do not find any merit in the appeal as well as cross-objections and both dismissed. 8. There is no order as to costs.