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2012 DIGILAW 958 (HP)

Nar Singh Dass v. Union of India

2012-12-11

DEV DARSHAN SUD

body2012
JUDGMENT Dev Darshan Sud, J. This writ petition has been preferred by the petitioner herein, who seeks appropriate writ for modification of award passed by the learned District Judge, Kinnaur Civil Division at Rampur Bushhar on 19.03.2008, Annexure P-4 and enhancement of the amount in terms of the statement and report of PW-3 Sh. B.S. Bajwa. 2. The learned District Judge, vide his judgment/award dated 19.3.2008 in petition under Section 16(3) of the Indian Telegraphs Act 1885 read with Section 51 of the Indian Electricity Act awarded a sum of Rs. 36,600/- along with costs of Rs. 2,000/- and interest @ 9% per annum with effect from 19.3.1997 till the entire amount is paid. 3. The case pleaded was that he is absolute owner in possession of the land comprised in Khasra No.675, measuring 0-18-28 hectares situated at Mauza Jarind, Tehsil Rampur Bushahr, District Shimla, H. P. It was pleaded that the petitioner had planted an orchard on the suit land having fruit bearing apple trees in the age group of 1012 years. The respondents approved the construction of work of 400 KV, D/C Jhakri Abdullapur Transmission Line through Power Grid Corporation of India Ltd. and the President of India had conveyed approval to this Scheme through the Ministry of Energy Department of Power, Government of India vide letter dated 5th April, 1989. According to the petitioner, the respondents had caused extensive damage to the fruit bearing trees etc., for which he prayed for compensation. On the settled issues, including limitation, the learned trial Court holds that the evidence of the petitioner established that 12 apple plants, one apricot plant have been completely damaged during the time when H.T. line was being laid. 19 apple plants were damaged. Thereafter damage was caused to 15 other plants also and he was held to be entitled to the compensation of Rs.15,450/-. Reliance was also placed upon the Harbans Singh Formula, on the basis of which PW3. B.S. Bajwa had prepared the damage report and had assessed the damage of Rs. 4,12,332/-. The respondents relied upon the assessment made on the basis of settled principles of the Horticulture department submitting that the Harbans Singh Formula was no longer in vogue as accepted while calculating the damage caused to the fruit trees. On the conspectus of the entire evidence, the learned Court below awarded a sum of Rs. 4,12,332/-. The respondents relied upon the assessment made on the basis of settled principles of the Horticulture department submitting that the Harbans Singh Formula was no longer in vogue as accepted while calculating the damage caused to the fruit trees. On the conspectus of the entire evidence, the learned Court below awarded a sum of Rs. 36,600/- along with costs of Rs.2000/- and interest @ 9% per annum with effect 9.3.1997 till the entire amount is paid. The respondents opposed the grant of relief supporting the award made by the learned Court below. 4. In Power Grid Corporation of India Limited versus Basant Singh and others, LPA 204 of 2007, decided on 21st May, 2010, Division Bench of this Court presided over by Hon’ble the Chief Justice has considered the provisions of Indian Telegraph Act, 1885. Adverting to the provisions of Section 10 and 16, this Court holds: “2. Under Section 10(d) it is clear that the Telegraph Authority while exercising power conferred under the Section for drawing the line or placing a post etc. it shall do as little damage as possible and in case there is any damage it shall pay full compensation to all persons interested for any damage sustained by them by reason of the drawing line or placing tower. By a separate Notification this Act has been made applicable to exercise of the powers by the appellant under the provisions of erstwhile Indian Electricity Act, 1910 read with Electricity (Supply) Act, 1948. Under Section 16 of the Indian Telegraph Act, if there is any dispute on sufficiency of the compensation, it is open to the disputing party to approach the District Judge of competent jurisdiction for adjudication regarding sufficiency of compensation. The provision reads as follows:- “16(3). If any dispute arises concerning the sufficiency of the compensation to be paid under Section 10, clause (d), it shall, on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him.” 3. Under Section 10(d) of the Indian Telegraph Act, 1885 what is contemplated is the compensation for the damage caused to a property by drawing an electric/ telegraph line or placing a tower. It is not the compensation as understood under the Land Acquisition Act where the land itself is acquired. Under Section 10(d) of the Indian Telegraph Act, 1885 what is contemplated is the compensation for the damage caused to a property by drawing an electric/ telegraph line or placing a tower. It is not the compensation as understood under the Land Acquisition Act where the land itself is acquired. Once the land is acquired, the party from whom land is acquired ceases to be owner of the property and ownership, title and possession, after acquisition vests in the acquisitioning/requisitioning authority. As far as the exercise of power for drawing of telegraph line or placing a tower etc. is concerned, the party is never divested of its ownership or title or possession. It is only a permissive use which is given a statutorily status. In the process, no doubt, the owner might suffer some injury. That injury is to be compensated in terms of the extent of injury like the adverse impact on the prospects of income or use of the property. It can never be land value as such since, as we have already stated above, the owner is never divested of his title, ownership or possession. But at the same time injury certainly could be there. Under Section 10(d) or in exercise of power under Section 16(3) the question only shall be as to what is the extent of injury to the property over which line is drawn or tower is placed, to be compensated in terms of money and nothing more. 4. Having analysed the legal position as above, and on going through the factual position in the present case, we find that the learned District Judge has misdirected himself in granting the land value itself by way of compensation by comparing the value of the property in the vicinity. That method is to be adopted, only when the Court exercises its power under Section 18 of the Land Acquisition Act, 1894 for the purpose of deciding land value in a case duly referred to the Court after acquisition of the property. The power that is exercised under Section 16(3) of the Indian Telegraph Act is not akin to the power exercised by the Reference Court under the Land Acquisition Act, 1894.” It is within these para-meters under which the damage caused to the plants has to be assessed. 5. The power that is exercised under Section 16(3) of the Indian Telegraph Act is not akin to the power exercised by the Reference Court under the Land Acquisition Act, 1894.” It is within these para-meters under which the damage caused to the plants has to be assessed. 5. Learned counsel appearing for the petitioner places reliance upon the Decision of this Court in Durgavati versus Nathpa Jhakhri Power Project Corporation and another, Latest HLJ 2008 (HP) 1328 to urge that the value of the trees has to be increased by 10% for every year. This Court holds: “8. Keeping in view the ratio of law laid down by the Apex Court in Om Parkash (D) by LRs and others Vs. Union of India and another, AIR 2004 SC 4135 . Land Acquisition Officer and Revenue Divisional Officer vs. Ramanjulu and others, (2005) 9 SCC 594 , and IInd Additional Special Land Acquisition Officer and another vs. Rukhiben and others, (2004)8 SCC 577 , judicial notice can be taken of the fact that the market value of the land in increasing day by day and there would be an average increase of 10% of the market price every years.” (p. 1331) 6. This principle of law was followed by this Court in Union of India and others versus Khazana Ram and others, 1998(1) Sim. L.C. 479 holding: “8. Since both the parties are not disputing that the basis for determining the compensation in 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 Ex. RW1/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, Punjabn and Himachal Pradesh for the purpose of assessment of market value of fruit trees. 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, Punjabn 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 Cjhauhan 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 increase in the Prince Index. 331% or three fold increase has been given for assessing the market value of fruit trees in the year 1996. 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 Prince Index filed along with the replies to the stay applications in the writ petition, 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. RW1/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 29.4.1987 passed by the District Judge, Bilaspur are modified. No costs.” 7. RW1/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 29.4.1987 passed by the District Judge, Bilaspur are modified. No costs.” 7. In this view of the matter and in view of the decision in Durgavati’s case (supra), wherein this Court holds: “12………………………………………………The Court considered the various decisions of the Apex Court in State of Kerala v. P.P. Hassan Koya, reported in AIR 1968 SC 1201 , Ratan Kumar Tandon and others vs. State of U.P., reported in (1997) 2 SCC 161 , Kiran Tandon vs. Allahabad Development Authority and another, reported in (2004) 10 SCC 745 , State of J& K vs. Mohammad Mateen Wani and others, reported in AIR 1998 SC 2470 , Abdul Kuddus Mandal and others vs. State of Assam and another, reported in (1999) 6 SCC 589 , Tejumal Bhojwani (dead) through LRs and others vs. State of U.P., reported in (2003) 10 SCC 525 , Collector, LAC, Mandi vs. Karam Singh and others, reported in Latest HLJ 2000 (HP) 694, Ramesh Chand and others vs. Land Acquisition Collector, reported in Latest HLJ 2003 (HP) 977 and RFA No. 54 of 1998 (The State Govt. of Himachal Pradesh vs. Atma Ram and others, decided on 13.7.2007. 13. Learned counsel for the respondents has referred to the decisions of the Apex Court in Koyappathodi M. Ayisha Umma vs. State of Keriala (1991) 4 SCC 8 , State of Haryana vs. Gurcharan Singh and another, 1995 Supp (2) S.C. 637, Airports Authority of India vs. Satyagopal Roy and others, (2002) 3 SCC 527 and Cement Corporation of India Ltd. vs. Purya and others, (2004) 8 SCC 270 . The judgments referred to and relied upon by the learned counsel for the respondents, in my view are clearly distinguishable. In the present case, the State has framed a policy, which is followed consistently and the awards are passed by the Collector separately based on the said policy. The judgments delivered by this Court in Chamera HE Project, NHPC vs. Kalyan Singh & others, (RFA No. 72 of 1998 and connected matters, decided on 30.5.2007) and National Hydro Electric Power Corporation vs. Sh. Vipin Kumar and others, (RFA No. 24 of 1998 and connected matters, decided on 7.8.2007) as relied upon by the learned counsel for the respondents, are not applicable. 14. Vipin Kumar and others, (RFA No. 24 of 1998 and connected matters, decided on 7.8.2007) as relied upon by the learned counsel for the respondents, are not applicable. 14. In a decision titled as State of H.P. vs. Atma Ram (supra), this Court had enhanced the compensation towards trees by four times. In Union of India and others vs. Khazana Ram and others, 1998(1) Sim.L.C. 479, the compensation was enhanced by five times. Even though the appellant has claimed enhancement of compensation towards acquisition of trees by 300%, however, in my view the interests of justice would be met if the amount is enhanced by five times as awarded by the Collector below. For the foregoing reasons, the appellant shall be entitled for compensation as under:- For Land Rs.69525/- per Bigha For Trees: Five times over and above the amount assessed by the Collector 15. Consequently, the claimant shall also be entitled to all the statutory benefits and more particularly in conformity with the ratio of law laid down by the Apex Court in Sunder v. Union of India, reported in (2001) 7 SCC 211 . The appeal is accordingly allowed.” this writ petition is allowed to the limited extent that the petitioner herein shall be entitled to five times of the amount awarded by the learned Court below for the damage caused to the plants which amount shall bear interest at the rate awarded by the learned Court below.