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Judgment
By means of this petition, filed under Article 227 of the constitution of India, the judgment and award dated 10.07.2017 as delivered in Civil Misc. 22/2013 has been challenged.
Heard Mr. S Bhattacharjee, learned counsel appearing for the petitioner as well as Mr. BN Majumdar, learned counsel and Mr. S Das, learned counsel appearing for the respondents.
There is no dispute that the right to use of the land pertaining to Khatian No. 11, RS Plot No.2806/6697, 2809/6699, 2807, 2804/6698 and 2907/6700 has been acquired by the petitioner. According to the respondent No.1, he grew many valuable trees over that land as its owner. When the right of the said land was acquired on 23.03.2011 by due process under the Indian Telegraph Act, 1885, according to the respondent No.2, a good number of valuable trees got completely damaged for erection of the high tension electricity line over the land of the respondent No.2. The compensation to make up for the damage was assessed at Rs.83,816/- under Section 10(d) of the Indian Telegraph Act, 1885. The respondent No.1 being aggrieved by such determination approached this court by filing WP(C)522/2011 [Bimal Ch. Roy vs. State of Tripura & Ors.] seeking interference in that award.
However, this court did not interfere in the said award having regard to Section 16(3) of the Indian Telegraph Act, 1885 which provides distinctly that 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 situated be determined by him. But this Court had occasion to observe as follows:
"19. The petitioners, by way of their rejoinder, have expressed their dissatisfaction on the unilateral assessment of compensation by the respondent No.2, who has undoubtedly no authority to assess such compensation inasmuch as even sub-section (6) of Section 68 of the Electricity Act, 2003 provides that:
"When disposing of an application under sub-section (5), an Executive Magistrate or authority specified under that sub-section shall, in the case of any tree in existence before the placing of the overhead line, award to the person interested in the tree such compensation as he thinks reasonable, and such person may recover the same from the license."
But, in this case no exercise in view of sub-section (5) of Section 68 of the Electricity Act, 2003 by the respondent nO.2 was taken up and thus those provisions have been pre empted by arbitrary action of the respondent No.2.
In this context of the matter, this Court is of the opinion that in terms of the provisions of Section 164 of the Electricity Act, 2003 as interpreted by the apex court in Livisha (supra), read with Section 16(3) and (4) of the Indian Telegraph Act, 1885 and for purpose of assessing the just and reasonable compensation in terms of the action as reflected in the impugned notice at Annexure P-1 collectively in W.P.(C) No.30/2012 and the impugned notices at Annexure P-2 in W.P.(C) No.521 of 2011, W.P.(C) No.521 of 2011 and W.P.(C) No.521 of 2011, the matters shall be referred to the District Judge, South Tripura, Udaipur as the land concerned in all the writ petitions are situated within the territorial jurisdiction of the District Judge, South Tripura, Udaipur. The District Judge shall assess the due compensation following the principles and procedures of the Land Acquisition Act deeming this reference as if made under Section 18 of the Land Acquisition Act, 1894. Needless to say, the parties before this Court would be at liberty to submit their respective claims without prejudice to what they have stated into heir affidavits filed before this Court. The parties would be allowed to adduce evidence in support of their respective claims and thereafter, the District Judge, South Tripura, Udaipur would determine the matter and pass the award as would deem proper in the fact and circumstances. The respondent No.2 shall be at liberty to deposit the amount as mentioned in the cheques as referred in Annexure-P/1 collectively in W.P.(C) No.30/2012 and Annexure P/2 in W.P.(C) No.521 of 2011, W.P.(C) No.521 of 2011 and W.P.(C) No.521 of 2011, before the District Judge, South Tripura, Udaipur. The said amount shall be immediately released to the petitioners by the District Judge without prejudice to their claim including the claim of interest. Accordingly, it is ordered. The respondent No.2 shall transmit all records alongwith a copy of this order to the District Judge, South Tripura within a month from today."
In terms of the above, the earlier writ petition was disposed of.
However, in compliance to the said judgment dated 23.07.2013 a proceeding being Civil Misc. 22/2013 commenced in order to determine the sufficiency of the compensation as made under Section 10(d) of the Indian Telegraph Act, 1885. After giving the parties opportunity to adduce their evidence in support of the claim or the counter-claim. By the impugned judgment the District Judge had determined the compensation and sufficiency thereof in the following manner:
"9) Thus, from the above said chart, it is discernable that parties are actually disputing the number of trees but not the nature and size of the trees. To prove the number of trees as claimed by the petitioner, he has placed carbon copy of one notice under Sl. No. 274 & 276 dtd. 23.03.2011 [Ext-2] into evidence which was issued to him by the O.P. No. 2. The originals of said notices under same Sl. No. 274 & 276 have also been proved by the O.P. No. 2 which have been marked as one item of Ext. A series. But surprising fact is that on comparison of the originals and the carbon copy thereof, some dissimilarities are found between two. In the original copy both the wife of petitioner namely, Kajal Roy, and officer of O.P. No. 2 namely, Biplab Sinha and Tehasildar of Jamjuri T.K. have signed, but in the carbon copy (Ext.2) signature of Tehsildar is not found. Similarly one initial signature of one officer of O.P. No. 2 is found on the upper portion of the body of the original notices which are missing in the carbon copies. In the original notices the number of trees which have been asserted by the O.P. No. 2 is found placed whereas in the copy thereof the number of trees as claimed by the petitioner is found mentioned. Neither party is disputing the authenticity of the notice submitted by the other side. O.P. No. 2 is not saying that the copy submitted by the petitioner under Ext. 2 is forged one. Original signature of said Biplab Sinha, one officer of Powergrid Corporation is found therein, which further justified the authenticity of the said carbon copy (Ext.2). Thus, what appears is that the copy of the notice was once served upon the petitioner by the O.P. No.2 but simultaneously in the original copy thereof some changes were made while preparing the same by the O.P. No.2. It can be easily inferred that both the original and the carbon copy were not prepared at the same time otherwise there cannot be so much dissimilarities. The original notices were filled up after the carbon copies were served upon the petitioner. Situated thus, it is presumed that the copy which was furnished to the petitioner by the O.P. No.2 is a reliable one and the manipulation, if any done, has been done by the Opp. Party No.2 in their original copies. It is also not clear why the O.P. No.2 retained the original copy with them and supplied carbon copy to the petitioner though as a matter of normal procedure, the notice recipient should receive the original notices and carbon copies are to be preserved by the notice giver. As it appears, the O.P. No.2 has awarded compensation on the basis of number of trees as mentioned in their original notice. However, as there is no plea that Ext.2 are forged or fake one, the number of trees as mentioned in the said copies are presumed to be correct and thus, it is held that petitioner will get compensation for the trees as mentioned in their copies of notices (Ext.2).
10) Regarding the quantum of compensation as revealed from the assessment sheet that the O.P. No. 2 also relied upon the rate of Forest Department dated 22.9.1999 and 27.4.2006 which were relied and proved by the petitioner under Ext. 3 and Ext.4. As the O.P. No.2 themselves have relied on the Forest Department notifications so, very safely same can be relied upon in calculating for compensation by this Court. Thus, considering the number of trees and also considering the Forest Department notification under Ext. 3 and Ext. 4 the following calculation is being made regarding value of the trees in a pictorial chart, however, in the assessment note made by the O.P. No.2 some percentage of amount was deducted under some heads namely, "Deduction as per NESH/PESM/714 dated 19.01.2010, "90% of (O) due to pending approval of NETC" and "Amount payable 95% of (P) due to the pending signature of revenue authority". But the O.P. No.2 could not justify on what basis those deductions were made and whether such deductions were supported by any provision of any law. Deduction cannot be made on the basis of any self created procedure unless same is done in accordance with law. How one can deduct 05% of the compensation stating that signature of revenue authority is pending. Thus, said deductions are held to be illegal and are not taken into consideration.
Value of the trees assessed by the Tribunal
Sl No.
Description of Trees
No. of Trees
Girth per tree (in Meter) (as furnished by O.P.no.2)
Volume per Tree per Cum(as furnished by O.P.no.2)
Rate per cum
Value per tree
Total Value
1
Gamair
09
1.15
0.743906
Rs.3,900/-
Rs.2,901/-
Rs. 26,109/-
2
Teak
11
1.2
0.855
Rs.7,500/-
Rs.6,412/-
Rs.70,532/-
3
Mehagini
03
0.95
0.45125
Rs.6,000/-
Rs.2,707/-
Rs.8,121/-
4
Gamair
27
1.2
0.81
Rs.3,900/-
Rs.3,159/-
Rs.85,293/-
5
Teak
82
1.25
0.976563
Rs.7,500/-
Rs. 7,324/-
Rs.6,00,568/-
6
Jackfruit
08
1.2
Not furnished by O.P. No.2
Not given as volume is not furnished
Rs.12,000 as given by O.P. No.2
Rs.96,000/-
7
Karai
22
1.4
1.47
Rs.3,700/
Rs.5,439/-
Rs.1,19,658/-
8
Jam
21
0.65
Not furnished by O.P. No.2
Not given as volume is not furnished
Rs.14,000/- as given by O.P. No.2
Rs.2,94,000/-
9
jam
27
0.35
Not furnished by O.P. No.2
Not given as volume is not furnished
Rs.14,000/- as given by O.P. No.2
Rs.3,78,000/-
Total
Rs. 16,78,281/-
11). The volume of each jackfruit tree and each Jam tree are not calculated by the Opp. party no.2, in their assessment note, so the compensation is given on the basis of same rate which was given by Opp. Party No.2, but number of trees has been increased. Thus, total compensation is assessed at Rs.16,78,281/-. The point is decided accordingly in favour of the petitioner."
Mr. Bhattacharjee, learned counsel for the petitioner did not raise any dispute in respect of the rate in this petition. Even he has not renewed his objection in respect of the deduction in view of the judgment and order passed today in CRP 85 of 2017 [Northeast Transmission Company Limited Vs. Ajit Nath]. However, his distinct and solitary objection in respect of the finding is that the same has been returned by the District Judge on the copy which was furnished to the petitioner [the respondent No.1] by the O.P. No. 2 accepting that as reliable one on observation that it is not clear to him why the O.P. No. 2, the petitioner herein, retained the original copy with them and supplied a carbon copy to the respondent No.1, though as a matter of normal procedure the notice-recipient should receive the original notice and the carbon copy is to be preserved by the notice giver. As it appears that the O.P. No. 1 (the petitioner herein) has awarded compensation on the basis of the number of trees as mentioned in their original notice.
The District Judge, however, has further observed that there is no plea that Exhibit-2 is fake one and thus the number of trees as mentioned in the said copy (Exhibit-2) is to be presumed to be correct and thus it is held that the petitioner will get compensation for the trees as mentioned in the said copy (Exhibit-2).
Mr. Bhattacharjee, learned counsel has further submitted that why the original copy that has been submitted by the petitioner (Exhibit-S series) was not accepted by the District Judge is not very transparent or there is no reason for acceptance except of the copy of the notice (Exhibit-2) which was adduced by the respondent No.1 herein. Mr. Bhattacharjee, learned counsel has shown the so called original copy of the notice dated 23.03.2011 issued by the petitioner showing the number of trees as follows:
Sl. No
Item
Species
Dimension
Qty
1.
2.
3.
Trees
Crops
Others
Gamai
Teak
Meghini
1.15mtr X 9 mtr
1.2 mtr X 9.5 mtr
95 mtr X 8 mtr
9 nos
11 nos
3 nos
According to him, this is the correct number of trees which were standing on the land, right to use of which was acquired by the petitioner. Mr. Bhattacharjee, learned counsel has fairly shown to this Court the other notice which is supposed to be a carbon copy of the notice sent to the respondent No.1. the significant feature is that in that copy there is no signature of the Tehsildar but the signature of the authorized officer of the petitioner is available. At this stage, Mr. Bhattacharjee, however, has submitted that the signature of Mr. Biplab Singha may not be similar.
This court is in total agreement with the observation of the District Judge. In the usual course, the respondent No.1 (the petitioner of the proceeding) is entitled to the original copy of the notice and for purpose of preservation in the records the petitioner herein was supposed to preserve the carbon copy of the said notice. Usually any authority has to place reliance on the notice that would be produced by the person who is supposed to get the notice. That apart, the doubt that has been sought to be created in this proceeding that the signature of the authorized officer may not be same is also not entertained by the court, inasmuch as, it appears that it is the signature by the same authorized person and as such this court in exercise of its powers as conferred by Section 73 of the Evidence Act, accepted the signature appearing as the officer of the petitioner herein as genuine in both the notices, but the primacy has to be given to the notice which was served on the respondent No.1.
Having observed thus, this court does not find any infirmity in the finding of the District Judge. Accordingly, this petition appears clearly bereft of merit and hence is dismissed.
However, in the circumstances, there shall be no order as to additional costs.