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1998 DIGILAW 31 (HP)

UNION OF INDIA v. KHAZANA RAM

1998-03-31

KAMLESH SHARMA, SURINDER SARUP

body1998
JUDGMENT AMLESH SHARMA, J.—These Civil Writ Petitions (CWPs No. 372, 373, 374, 375, 376 and 377 of 1997) and Civil Revision Petitions (CRs No. 291, 292, 293, 294, 295 and 296 of 1997) involve common question of law and fact, as such, these are being disposed of by a common judgment. The petitioners in the writ petitions, who are respondents in the civil revision petitions, will be referred to as authorities, whereas, the respondents in the writ petitions, who are petitioners in the revision petitions, as claimants1. The authorities in their writ petitions have prayed for setting aside the awards dated 29.4.1997 passed by District Judge, Bilaspur and for confirming the compensation assessed by the District Horticulture Officer, Bilaspur, which was approved by the Deputy Commissioner, Bilaspur with enhancement to the extent of 30%. On the other hand, in the revision petitions the claimants have prayed for enhancement of the compensation awarded to them by the impugned awards. 2. In the impugned awards the District Judge has held that the claimants "should be paid at least 6 times more in respect of fruit trees other than the Lichi and 12 times in respect of Lichi trees which has been assessed by RW-2 in his report Ext. RW-1/A." The claimants are also held entitled to interest at the rate of 12% p.a. from 1st October, 1989 till the date of payment of compensation. The impugned awards have been passed by the District Judge in six separate Land References No. 4 to 1992, 5 of 1992, 2 of 1992, 3 of 1992, 6 of 1992 and 1 of 1992 filed by the claimants under Section 16(3) of Indian Telegraph Act, 1885 (hereinafter called the Telegraph Act1) read with Section 51 of Indian Electricity Act (hereinafter called the Electricity Act1). 3. The brief facts are that for construction of towers and over-head electric lines from slapper to Bhawani by the authorities damage was caused to the trees of the claimants. There is no dispute with regard to the number of trees of each of the claimants, their species and class. The dispute pertains to the amount of compensation due and payable to the claimants. There is no dispute with regard to the number of trees of each of the claimants, their species and class. The dispute pertains to the amount of compensation due and payable to the claimants. The authorities got the compensation assessed by the District Horticulature Officer, Bilaspur, which was approved by the Deputy Commissioner, Bilaspur by his order dated 17.8.1990 with enhancement to the extent of 30% merely on the ground that the assessment made by the Department appears to him on the lower side. 4. Feeling aggrieved, the claimants filed petitions under Section 19 read with Section 52 of the Electricity Act before the Chief Secretary to the Government of Himachal Pradesh, who vide his order dated 21.8.1991 appointed the Joint Secretary (Law) to the Government of Himachal Pradesh as Arbitrator for assessment of the compensation. The Arbitrator vide his order dated 26.3.1992 sent the matter back to the State Government without answering the reference holding that he had no jurisdiction in the matter and the remedy available to the claimants was to file reference petitions under Section 16(3) of the Telegraph Act for determining the compensation due and payable to them. It was in this background that the reference petitions were filed by the claimants before the District Judge, Bilaspur. 5. We have heard learned Counsel for the parties and gone through the record. The learned Counsel appearing for the authorities has referred to notification dated 9.9.1998 (Annexure PA to the writ petition) to urge that the parties are liable to pay compensation of fruit-bearing trees as per assessment of the Department of the Himachal Pradesh Government concerned. This notification has been issued by the Governor of Himachal Pradesh in exercise of powers conferred by Section 51 of the Electricity Act, whereby the powers of Telegraph authority as specified in the Telegraph Act with respect to placing of telegraph lines and posts have been conferred on the officers not below the rank of S.D.O.s of the Beas Construction Board a part and limb of the Central Government, for laying of 400 KV Dehar-Bhiwani Transmission Line, appliances and apparatus for the transmission of energy as it passes through the territory of Himachal Pradesh subject to certain conditions and restrictions mentioned in the notification. The learned Counsel for the authorities has placed reliance on condition No. 4, which lays down that the compensation for fruit-bearing trees will be paid as per the assessment of the Department of the Himachal Pradesh Government concerned to submit that the Deputy Commissioner, Bilaspur has executed his jurisdiction by enhancing the compensation to the extent of 30%. He has also argued that the compensation assessed by the District Judge is not only exorbitant but also unjust and unreasonable. On the other hand, learned Counsel for the claimants has argued that the claimants have not been awarded full compensation for the damage done to their fruit trees in accordance with law. 6. We do not find any substance in the submission made on behalf of the authorities. The assessment of compensation approved by the Deputy Commissioner, Bilaspur with 30% enhancement was not challenged by the authorities either by filing reference petition under Section 16(3) of the Telegraph Act or by filing cross-objections to the reference petitions filed by the claimants, as such, they cannot be permitted to raise objection to the compensation assessed by the Deputy Commissioner, Bilaspur by filing these writ petitions. Admittedly, the basis of compensation assessed by the District Horticulture Officer (Annexure PB to the writ petition and Ext. RW-1/A on the file of the District Judge) was Harbans Singh formula, as stated by one of the witnesses produced on behalf of the authorities, namely, Ram Lok RW-2, who had made the said assessment. Referring to the said formula, this witness has categorically stated that this formula is the only basis for assessing the compensation for fruit trees. He has also admitted that this formula was prepared in the year 1958 at the time of construction of Bhakhra Dam, whereas, the compensation in the present case was assessed in the year 1989, during which period the cost of planting and rearing the fruit trees has increased manifold but no premium has been given in the compensation assessed by him. Therefore, from the pleading and evidence produced on behalf of the authorities it is clear that the compensation of the fruit trees is to be assessed on the basis of Harbans Singh formula. 7. Therefore, from the pleading and evidence produced on behalf of the authorities it is clear that the compensation of the fruit trees is to be assessed on the basis of Harbans Singh formula. 7. On the other hand, from the pleadings and evidence produced on behalf of the claimants, there is no doubt that they have also relied upon Harbans Singh formula for assessing the compensation of their fruit trees. Even before us, in reply to the applications for stay filed in the writ petitions the claimants have reiterated that the compensation is to be assessed on the basis of Harbans Singh formula but have prayed for increase in proportion to the rise in prices as per the Price Index of Department of Economic and Statistics, Himachal Pradesh. They have placed on record the wholesale Price Index determined by taking Price Index of the year 1970-71 as 100. 8. Since both the parties are not disputing that the basis for determining the compensation is Harbans Singh formula, the controversy is narrowed down that how much increase should be allowed over the assessment of compensation made by the Department (Annexure PB to the writ petition and Ext. RW-1/A on the file of the District Judge) keeping in view the rise in prices from the year when the said formula was prepared and adopted. This formula is contained in Article The Evaluation of Fruit Trees, Basic Principles and Method written by Shri Harbans Singh, the then Director of Horticulture, Himachal Pradesh, which was duly approved by the Directors of Agriculture, Punjab and Himachal Pradesh for the purpose of assessment of market value of fruit trees. In judgment dated 9.7.1997 passed in Civil Suit No. 98 of 1998 titled Smt Vijoti Devi (since deceased) through her legal representative Raj Pal Chauhan v. The State of Himachal Pradesh, the learned Single Judge of this Court has accepted this formula for determining the market value of the fruit trees. In the said judgment, it has been taken note of that this formula was published in the year 1966 since when there has been substantial increased in the Price Index. 331% or three-fold increase has been given for assessing the market value of fruit trees in the year 1986. In the said judgment, it has been taken note of that this formula was published in the year 1966 since when there has been substantial increased in the Price Index. 331% or three-fold increase has been given for assessing the market value of fruit trees in the year 1986. Similarly, in Ranjit Singh v. The Union Territory, Chandigarh, 1983 Revenue Law Reporter (P&H) 451 the Harbans Singh formula was applied for determining the market value of the fruit trees and premium was given for increase in Price Index from the year 1966 till the year of assessment of compensation. 9. So far the present case is concerned, the year of assessment is 1989 and if we rely upon the Price Index filed along with the replies to the stay applications in the writ petitions, the Price Index has arisen from 79.7 in the year 1966 to 428.8 in the year 1988 taking the Price Index as 100 for the base year 1970-71. The Price Index for the year 1989 has been shown 176.4 by taking 100 for the base year 1981-82. Therefore, the increase from 1966 to 1989 will be approximately five times. Accordingly, we hold that the ends of justice would be met if the claimants are given compensation five time of the compensation assessed by the Department as per Annexure PB to the writ petitions and Ext. RW-1/A on the file of the District Judge, Accordingly, the writ petitions are partly allowed, whereas, the revision petitions are dismissed and the impugned awards dated 29.4.1997 passed by District Judge, Bilaspur are modified. No costs. Petition partly allowed.