Bhartu and Others vs State of Haryana

N.C. Jain, J.—This judgment of mine would dispose of Regular First Appeal Nos. 1949 to 1961 of 1991 and 2154 of 1992 filed by the landowners against the Award of the District Judge, Ambala, dated 12.3.1991. All the appeals arise out of common notification and common Award.

The State of Haryana in pursuance of notification dated 16.12.1980 issued u/s 4 of the land Acquisition Act (hereinafter referred to as ''the Act''), acquired land measuring 533 acres, situated in village Kathgarh, Tehsil, Jagadhri District Yamuna Nagar. The aforesaid land was acquired for a public purpose, namely, for forest plantation. The land Acquisition Collector by his Award dated 18.6.1986, assessed the compensation for the acquired land at the rate of Rs. 1600/per acre. Dissatisfied with the Award of the Land Acquisition Collector, the landowners sought references u/s 18 of the Act. On reference, the learned District Judge, Ambala, has determined the market value of the acquired land at the rate of Rs. 3100/- per acre. Aggrieved against the Award of the learned District Judge, Ambala, the landowners have filed these appeals.

In these appeals two questions arise. They are whether the grant of compensation at the rate of Rs. 3100/- per acre is just, fair and reasonable and whether the landowners are entitled to the grant of compensation for the trees, which according to them, were standing at the time of acquisition. In order to appreciate the aforesaid questions, it is necessary to have a look at the oral and documentary evidence brought on the record of the case.

The landowners produced six witnesses whereas the State has produced one witness. Apart from the oral evidence, the landowners produced Exh. P1 Aks-shajra, Ex. P2 the report of the Local Commissioner mentioning the number of trees, P3 the plan showing the trees of various kinds i.e. Chhal etc. Exhs. P4 and P5 evidencing the payment of some money, Exhs. PA, PB, PC copies of sale deeds Exhs. PD, PE and PF copies of the mutations and Exhs PC and PH copies of the jamabandis. The State of Haryana in addition to the production of R.W.I. Krishan Kumar Patwari of the office of the Deputy Conservator of Forests Ambala also produced Ex. R1 the index map showing the. acquired land in green colour, copies of the sale deeds Exhs R2 to R6 and R.7 the gist of the sale transactions.

PW. 1 Kamlesh Singla Clerk Tehsil Office Jagadhri stated that Mehar Singh Contractor took in auction Som Nadi in village Kathgarh regarding gold (probably he means minerals).

PW. 2 Naib Singh Patwari stated that village Kathgarh was in his revenue circle and that he bad seen the signature on the Aks-shajra of the previous Patwari Balwant Singh which was prepared by him. He claims to have seen the nature of the land which was uneven. Khasra Nos. 52/14 and 78/3, 4/1 and 4/2, according to him, was near the acquired land. Khasra No. 146 was situated at a distance of 6-7 acres away from the acquired land. In cross-examination he was constrained to admit that the entire acquired land was Gair Mumkin Pahar and was unfit for cultivation. The acquired land, according to him, suffered erosion due to the flow of water from the Hilly area. He further stated that the Forest Department did plantation over the acquired land. He volunteered to say that plantation was already there. He further admitted in cross-examination that he had not seen the acquired land prior to his posting as Patwari i.e. before September 1990. Village Kathgarh, according to him, was situated at a distance of 8-10 killas from the acquired land.

PW. 3 Kartar Singh claims to have seen the Forest of Kathgarh. He stated that he had seen there trees of Chhal, Jingan, Khair, Sain, Cheer, Chilly, Chilla, Dhakran, Kikkar, Sheesham, Neem, Neor, Jhanjhera. die stated that he had seen and counted the trees for four days. He is stated to have prepared the site plan Exh. P3. He proved his report regarding the counting of trees Exh. P.2. He also claims to have counted the trees which were old and were in the shape of coupling. He further stated that all the trees were more than 20 years old which had been shown in his report. He categorically stated that he did not count the trees which were of the age of less than ten or twelve years. Regarding his experience, he stated that he had worked in the Forest Department for 22 years and that he had the experience regarding the age of the trees and counting of the same. He had given the approximate value of the trees as fifteen to sixteen lacs. Old trees, according to him, were of the girth of 40 cms. to 220 cms. In cross-examination, he admitted that he had not mentioned about the valuation of the trees in the report. He further stated that he did not associate any employee of the Forest Department at the time of his inspection. However, in the next breath, he volunteered to state that Forest guard was present at the spot and his name was Krishan Lal. Raghbir Singh Sarpanch, Dhani Ram, Banta Ram, Des Raj, Sultan Chowkidar, Ram Sarup Member Panchayat, Bam Ram remained with him at the time of counting and some of them, according to this witness, had counted the trees. He stated that he did not write the length of the trees in the report Exh. P.2. Similarly, he did not mention the girth of the trees in the report. He stated that he was recruited as guard in the Forest Department. He denied the suggestion that he prepared a wrong report depicting high number of trees. He further denied the suggestion that the age of the trees was not 20 years.

PW. 4 Dhan Ram stated that he took the contractorship for Bhabar Ghas for Rs. 15000/- in the year 1980-81 of the forest of village Kathgarh. He proved receipt Exh. P4 issued to him under the thumb marks of villagers, signatures of Sarpanch and Lambardar of the village. He stated that the contract was for a total area of 533 acres of land. He admitted that the area was Gair Mumkin Pahar. He denied the suggestion that receipt Exh. P.4 was forged by the villagers. The Panchayat, according to him, passed a resolution about the grant of contract in the Resolution Book of the Panchayat.

PW. 5 Harkesh claims to have taken the contract of stones and bhabhar grass of village Kathgarh for a sum of Rs. 16000/- against receipt Ex. P5 issued by the Lambardar and Sarpanch of the village. In cross-examination he stated that he did not remember the name of the scribe of the receipt. He further stated that the contract was for the year 1980 and was for a period of one year. He also denied the suggestion that the receipt was forged by the villagers.

PW. 6 Ronki Ram is a claimant who stated that the acquired land was of good quality at the time of its acquisition. There was Bhabhar grass, Sarala grass and other grazing grass, besides Poola Sarkanda standing there. He testified about the existence of trees like Sal, Sain, Salar, Jhingan, Jhanger, Gul Lakri, Sheesham, Khair, Neem, Chilly, Jhakra etc. He could not tell the age of the trees but they were of good girth. He further could not tell their length. According to him, the market value of the acquired land at the time of acquisition was Rs. 10000/- per acre. He stated that there were two lakhs trees in the land. In cross-examination he stated that counting of trees continued for four days. Kartar Singh Ranger had also counted the trees. He denied the suggestion that no trees were standing on the acquired land and that he market value of the acquired land was not more than Rs. 1600/- per acre. He further denied the suggestion that he had given exaggerated price of the acquired land.

RW. 1 Krishan Kumar Patwari stated that he had seen the acquired land at the time of its acquisition and that he had prepared the index map village Kathgarh Exh. R.1. The acquired land was Gair Mumkin Pahar and not fit for agriculture. He further stated that the acquired land was reserved under Sections 4 and 5 of the Punjab Land Preservation Act 1900 and that there was no tree planted over the land at the time of acquisition, although there were some bushes in the acquired land. The acquired land, according to him, suffered erosion due to the flow of water coming from the Hilly area. He produced certified copies of the sale deeds Exh. R.2 to R. 6 and a gist of sale deed Ex. R.7. He admitted that certified copies of sale deeds Exhs. R.2 to R.6 pertain to the abadi and agricultural land and that the land sold there in was far better than the acquired land. In cross-examination he was constrained to admit that he had not shown the sale transaction in the index map Exh. R.1 and that he had not brought any record regarding the preservation of the acquired land under Sections 4 and 5 of the Act. He further admitted that the acquired land was not reclaimed as per the record and, therefore, there was no question of plantation before its acquisition. He denied the suggestion that different kinds of trees existed at the time of the acquisition.

The learned District Judge after examining the ''evidence, the gist of which has been given above, has assessed the market value of the acquired land at the rate of Rs. 3100/- per acre. He found that the sale deeds Exhs. PA, PB and PC pertained to the sale of 14 Kanals 16 Marias of Barani Land in the village whereas the acquired land was gair mumkin Pahar. He further found that the State of Haryana led evidence showing the sale of 6 Kanals 14 Marlas of land in the year 1980 vide sale deeds Exhs. R. 2 R.3 and R.5 for a total consideration of Rs. 3000/- which came to Rs. 3582/- per acre. The other transactions of sale covered vide Exhs. R.4 and R.6 did not have any bearing as they pertained to the sale of plots in the village abadi. The land was found to be Gair Mumkin Pahar and unfit for cultivation and, therefore, in the view of the District Judge the transactions of sale relied upon by the landowners and the State did not have any direct bearing on the market value of the acquired land. Regarding trees, it was found by him that they were not in existence in the year 1980. The learned District Judge did not find any force in the arguments of the learned counsel for the claimants that the Gair Mumkin land should have been evaluated at the rate of 75 per cent of the barani land. For arriving (sic) the conclusion that the landowners were entitled to the grant of compensation at (sic) rate of Rs. 3100/- per acre, reliance was placed upon a decided case Ram Singh and Others Vs. Punjab State now Haryana State, . In the ultimate conclusion, the learned District Judge has granted compensation at the rate of Rs. 3100/- per acre by holding that compensation for their Mumkin Pahar was equal to the Collector rate for Barani land which was Rs. 3100/- per acre. No compensation was granted for the extraction of the minerals.

Sim S.D. Bansal, learned counsel for the appellant-landowners has vehemently argued that the learned District Judge has committed an error in not placing reliance upon the sale deeds Exhs. PA to PC wherein the land situated in village Kathgarh was sold for Rs. 11920/- per acre in the year 1980. The argument has got no force. It has been found as a fact by the learned District Judge that the acquired land was Gair Mumkin Pahar. The finding recorded by the learned District Judge is borne out from the entries in the Jamabandi for the year 1980-81. On perusal of the contents of the sale deeds Exhs. PA to PC it has been seen by me that the land sold therein was situated within the abadi of the village and that the land was Barani in nature. The land situated in the village abadi is certainly not comparable with the acquired land which is only Gair Mumkin Pahar. The acquired land was uncultivable and, therefore, the same has rightly been evaluated at Rs. 3100/- per acre. It has been held in Ram Singh''s case (supra) that where the land acquired was large area situated far away from the small plots of land situated near the village abadi and not having comparable benefits and advantages cannot furnish any criteria for determining the market value of the acquired Gair Mumkin Pahar land. The Hon''ble Judges in Ram Singh''s case (supra) have ultimately awarded compensation for the Gair Mumkin Pahar land at the same rate which was fixed for Banjar Qadim. In my considered view the acquired Gair Mumkin Pahar Land deserves to be evaluated at the same rate both on the basis of decision taken is Ram Singh''s case (supra) and on the ground that Banjar Kadim land and Gair Mumkin Pahar land were not fit for cultivation. No exception to the valuation put by the learned District Judge for the acquisition of Gair Mumkin Pahar Land can be taken.

The landowners also have rightly not been granted any compensation on account of minerals granted as they have not been able to show any minerals growth. Mere passing Som Nadi through the land does not ipso facto entitle the claimants to get any compensation on account of mineral advantages.

This brings me to the question whether the landowners are entitled to the grant of any compensation on account of plantation of trees. After going through the entire evidence, I am of the view that the landowners have been able to prove the plantation of trees by them. They have examined Kartar Singh PW. 3 a retired assistant Range Officer who has stated that he had visited the Forest area of village Kathgarh on 7.12.1990 and counted the trees which were 1,94,962 in number. Not only that he has been able to give the kind of trees which were Chhal, Jingan, Khair, Sain Cheer, Chilly, Chilla, Bhakran, Kikkar, Sheeshsam, Neem, Neor, Jhanjhera etc. etc, he submitted his report Ex. P2 regarding the counting of the trees. Simply because he did not associate any other employee of the Forest Department or he did not give any valuation in the report, the same would be no ground for recording a finding that the trees did not exist on the land. The landowners claimed in the claim petition that they were entitled to the grant of Rs. 10 lakhs (ten lakhs) for the acquisition of their trees. The trees were found to be old and were in the shape of coupling. He gave the age of trees as more than 20 years old. He claimed to have not counted the trees which were of the age of less than 10 or 11 years. The existence of bushes at the time of acquisition was not denied even by the State. The existence of trees in the year 1990 when the report was prepared by PW. 3 Kartar Singh cannot be attributed to the plantation made by the Forest Departmental the trees were more than 20 years of age. In my considered view PW. 3 Kartar Singh can be relied upon regarding the number of trees and on the point of valuation he could commit error as the basis for arriving at the figure of Rs. 15 to 16 lacs, are not forthcoming either in his report or in the statement.

After taking into consideration the totality of the facts and circumstances of the case, I am of the view that trees were in existence on the date of acquisition.

Having found the existence of trees, the question arises as to what should be the valuation. The landowners claimed a sum of Rs. Ten lacs in their claim petition. The expert witness has valued the trees at Rs. 15 to 16 lacs. In my opinion, the claimants and the expert have exaggerated the value of the trees. After applying all my guess work. I am of the firm view that the landowners are entitled to the grant of Rs. five lakhs for the acquisition of trees and for the entire acquired and which is 533 acres. The compensation per acre comes to Rs. 938/- approximately which can be rounded off at Rs. 940/- per acre. The amount of Rs. 940/- on addition to Rs. 3100/-, the compensation payable to the landowners both for the acquired land and the trees comes to Rs. 4040/- per acre.

For the reasons recorded above, the appeals filed by the appellant-landowners are allowed to the extent indicated above with proportionate costs. They would also have all the benefits of the amended provisions of sections 23(1A), 23(2) and 28 of the Act.