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2014 DIGILAW 1452 (HP)

State of Himachal Pradesh v. Bimla Kalta

2014-10-17

SANJAY KAROL

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JUDGMENT : Sanjay Karol, J. 1. For the public purpose namely construction of Ramnagar-Thana-Baghari road, proceedings for acquisition were initiated by the State under the provisions of Land Acquisition Act, 1894 (hereinafter referred to as the Act). Notification under Section 4 of the Act, was published in the Gazette on 07.02.1998. Collector, Land Acquisition passed award dated 28.05.1999 with respect to the land and superstructure built thereupon. Supplementary award with respect to fruit bearing trees was published on 01.06.2001. It is not in dispute that possession of the land was taken prior to initiation of acquisition proceedings. Extent of total land acquired is 1 bigha 13 biswas, out of which 1 bigha is of category Bagicha Bakhal Doem and 13 biswas is of category Ghasni. With respect to category Bakhal Awal (including Bakhal Doem), Collector, Land Acquisition determined the market value to be Rs. 16,675-20 paisa and with respect to Banjar Kadeem (including Ghasni) market value was determined at Rs. 2,033-60 paisa. On the basis thereof, Collector awarded compensation in the following terms:- "9. Other relief:- No other relief is allowed in this case. In view of the above discussions, total amount of compensation arrived at in this case is, as under:- 1. Compensation of Land. Rs. 13,929-84 2. Solatium U/S-23(2) of the Act @ 30%. Rs. 4,178-95 3. Additional amount U/S-23 (1-A) @ 12% P.A. from 7-2-98 to 28-5-99. Rs. 2,191-62 Total:- Rs. 20,300-41 Or say:- Rs. 20,300/- (Rupees Twenty thousand three hundred) only." For fruit bearing trees compensation of Rs. 7,941/- was awarded. 2. Aggrieved thereof, claimant filed a petition under Section 18 of the Act, seeking enhancement of the amount of compensation. In terms of the impugned award dated 20.11.2007, Court below re-determined the market value of the land and awarded compensation with respect to the land/superstructure/trees in the following terms:- "13. As a result of my above discussion, I hold that the petitioner is entitled to receive compensation for the acquired land by taking the market value of one bigha at Rs. 10,900/- for Banjar Kadim/Ghasni by taking the price of Banjar Kadim at Rs. 10,900/- price of Bakhal Doem is at Rs. 67000/- and her share in the value of the trees which assessed at Rs. 52,589/- for 13 trees. The petitioner shall further be entitled to: (a) Solatium at the rate of 30% on the market value assessed above. 10,900/- for Banjar Kadim/Ghasni by taking the price of Banjar Kadim at Rs. 10,900/- price of Bakhal Doem is at Rs. 67000/- and her share in the value of the trees which assessed at Rs. 52,589/- for 13 trees. The petitioner shall further be entitled to: (a) Solatium at the rate of 30% on the market value assessed above. (b) Additional solatium charges at the rate of 12% per annum on the market value as assessed above for the period and from the date of publication of notification under Section 4 of the Act 1894 i.e. 7.2.1998 to the date of Collector's award or the date of taking of the possession of the acquired land which ever is earlier. (c) Interest at the rate of 9% per annum on the enhanced amount from the date of notification 7-2-1998 for one year. (d) Interest at the rate of 15% per annum on the enhanced amount from the date of expiry of the period of one year of the date of notification i.e. from 7.2.1998 till the date of payment of the amount in the Court." (Emphasis supplied) 3. Challenge to the award by the State is to the limited extent for it is vehemently argued by Mr. R.S. Verma, learned Additional Advocate General that the Court below could not have awarded any compensation, be it additional solatium or otherwise for the period prior to initiation of acquisition proceedings. The submission is legally sustainable. In view of law laid down by the apex Court in Siddappa Vasappa Kuri and Another vs. Special Land Acquisition Officer and Another, (2002) 1 SCC 142 and Special Tahsildar (LA), P.W.D. Schemes, Vijayawada vs. M.A. Jabbar, (1995) 2 SCC 142 , compensation under the provisions of the Act, awarded from the date on which the possession is taken under the provisions of the Act, which in the instant case has to be with the publication of the notification in the official Gazette i.e. 07.02.1998, Mr. Ramesh Sharma, learned counsel points out that claimant is also not claiming compensation with respect to the period prior to the same. 4. Mr. Ramesh Sharma, learned counsel, while contending that claimant is entitled to compensation Rs. 1,30,000/- to 4,00,000/- per bigha, invites my attention to exemplar sale deeds (Ex.PW-1/A and Ex.PW-1/B collectively). 5. Ramesh Sharma, learned counsel points out that claimant is also not claiming compensation with respect to the period prior to the same. 4. Mr. Ramesh Sharma, learned counsel, while contending that claimant is entitled to compensation Rs. 1,30,000/- to 4,00,000/- per bigha, invites my attention to exemplar sale deeds (Ex.PW-1/A and Ex.PW-1/B collectively). 5. Having perused the record, I am of the considered view that claimant has failed to establish the potentiality and similarity of the land covered under the exemplar sale deeds with that of the acquired land. Witnesses Bimla Devi (PW-1), Gian Singh (PW-4) and Gurcharan Singh (PW-5), nowhere depose that acquired land is comparable with the exemplar sale deeds in any respect. As such, findings returned by the Court below with respect to the determination of market value of the land for category Bakhal Doem cannot be faulted. 6. Mr. Ramesh Sharma, further points out that in any event claimant is entitled to uniform market value of the entire acquired land. Significantly a Coordinate Bench of this Court in Durgavati vs. Nathpa Jhakhri Power Project, Latest HLJ 2008 (HP) 1328, has held as under:- "12. In Abdul Kuddus Mandal and Others vs. State of Assam and Another, (1999) 6 SCC 589 , the Apex Court has held:- "It appears to us that the High Court fell in a basic error in not awarding compensation for the houses on the ground that since land had been acquired, it is only compensation for removal of houses standing thereon, which could have been granted because houses had not been acquired. That is not a correct approach. The compensation was required to be paid for the houses which were standing on that land. The land could not have been acquired without the houses standing thereon. The Reference Court had rightly awarded compensation for the houses. The order of the High Court on this account suffers from apparent error. Insofar as the reduction in the rate for land from Rs. 36,000 as awarded by the Reference Court to Rs. 20,000 per Bigha by the High Court is concerned. We are not persuaded to disagree because we have not found any error to have been committed by the High Court in that behalf. Insofar as the reduction in the rate for land from Rs. 36,000 as awarded by the Reference Court to Rs. 20,000 per Bigha by the High Court is concerned. We are not persuaded to disagree because we have not found any error to have been committed by the High Court in that behalf. The High Court has not adverted to the compensation on account of zirut separately, though compensation on that account had been awarded by the Land Acquisition Collector and upheld by the Reference Court." Now in the instant case, applying the aforesaid principles and perusal of the award passed by the Collector itself would show that assessment has been separately carried out with regard to land and super structure. In my view, if the State itself had offered separate amount of compensation for the structure separately, therefore, the award cannot be faulted for this reason. Accordingly, the Court below was right in enhancing the amount of compensation." The Court considered the various decisions of the Apex Court in State of Kerala vs. P.P. Hassan Koya, AIR 1968 SC 1201 , Ratan Kumar Tandon and Others vs. State of U.P. (1997) 2 SCC 161 , Kiran Tandon vs. Allahabad Development Authority and Another, (2004) 10 SCC 745 , State of J&K vs. Mohammad Mateen Wani and Others, AIR 1998 SC 2470 , Abdul Kuddus Mandal and Others vs. State of Assam and Another, (1999) 6 SCC 589 , Tejumal Bhojiuani (dead) through LRs. and Others vs. State of H.P. (2003) 10 SCC 525 , Collector, LAC, Mandi vs. Karam Singh and Others, Latest HLJ 2000 (HP) 694, Ramesh Chand and Others vs. Land Acquisition Collector, Latest HLJ 2003 (HP) 977 and RFA No. 54 of 1998 (The State Government of Himachal Pradesh vs. Atma Ram and Others, decided on 13.7.2007. 7. Keeping in view the aforesaid principle of law, in my considered view, claimant has made out a case for interference and as such, is entitled to a sum of Rs. 67000/- per bigha for the entire acquired land. Regardless of its category, entire acquired land has been put to use for the public purpose. 8. Perusal of record further reveals that the Court below did not award any compensation with respect to non fruit bearing trees. There is evidence on record to establish that claimant suffered loss to the extent of Rs. Regardless of its category, entire acquired land has been put to use for the public purpose. 8. Perusal of record further reveals that the Court below did not award any compensation with respect to non fruit bearing trees. There is evidence on record to establish that claimant suffered loss to the extent of Rs. 1,41,562/- with respect to different categories of non fruit bearing trees, which were felled by the State at the time of construction of road. The fact that trees existed on the acquired land cannot be disputed and in any event, stands proved by Government official Gurcharan Singh (PW-5) Block Officer, Forest Gohach Kotkhai, Shimla, who admits to have prepared assessment reports (Ex.PW-5/A and Ex.PW-5/B respectively) with regard to trees of different species i.e. Kail and Cheel. The witness clarifies that inspection was carried out when Patwari and Forest Guard were present. Such loss stands established on record. Thus, claimant is entitled to additional compensation of Rs. 1,41,562/- for the loss of non fruit bearing trees which were uprooted by the State. 9. As such, impugned award dated 20.11.2007, passed by District Judge (F), Shimla, in Land Reference No. 6-S/4 of 2006/04, is modified. Accordingly claimant shall be entitled to the enhanced amount of compensation. Interest thereupon, shall be in terms of award passed by the Court below, as clarified by this Court. 10. Claimant shall be liable to pay Court fee on the enhanced amount. Registry is directed to take all necessary actions. 11. With the aforesaid observations, present appeal as also the cross objections stand disposed of, accordingly, so also, pending applications, if any. Appeal Disposed of.