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Judgment
By means of this petition, filed under Article 227 of the constitution of India, the judgment and award dated 22.06.2017 as delivered in Civil Misc. 25/2013 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. 2079, RS Plot No.2806/0702, 2808, 2809/6703 and 2907/96701 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.1. The compensation to make for the damage was assessed at Rs.2,22,196/- 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)521/2011 [Narayan Ch. Roy vs. State of Tripura & Ors.] seeking interference in the 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. 25/2013 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 due opportunity to adduce their respective evidence in support of their claim or the counter-claim, by the impugned judgment, the District Judge determined the compensation and sufficiency thereof in the following manner:
"10) 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 proved carbon copy of one notice under Sl. No. 275 which was issued to him by the O.P. No. 2 and same was marked as Ext. 2. The original copy of said notice under same Sl. No. 275 has also been proved by the O.P. No. 2 which has been marked as one item of Ext. A series. But on comparison of the original one and the copy thereof, it is found that there are some dissimilarities between both the two. In the original copy (Ext. A series), both the brother of petitioner namely, Rajesh Roy, officer of O.P. No. 2 namely, Biplab Sinha and Tehasildar of Jamjuri T.K. have signed but in the 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 notice which is missing in the copy (Ext.2). The number of trees are also differing both in the copy and the original notice. In the original notice the number of trees which have been asserted by the O.P. No. 2 is found mentioned whereas in the copy thereof the number of trees as claimed by the petitioner is 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 in both the said copy and in the original notice, which further signifies that said copy was prepared by the officials of O.P.no.2 and not by the petitioner. Thus, the authenticity of the said copy cannot be doubted at this stage. At best it can be inferred that the copy of the notice (Ext.2) which was served upon the petitioner was prepared by the O.P. No. 2 on one occasion without filling up the original copy thereof, and the original copy (Ext. A series) was prepared by the O.P.no.2 on any subsequent occasion making some changes therein i.e. the original notice was filled up after the carbon copy thereof was 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. 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 notice and carbon copy is 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 is a fake one, the number of trees as mentioned in the said copy (Ext.2) is presumed to be correct and thus, it is held that petitioner will get compensation for the trees as mentioned in said copy (Ext. 2).
11) Regarding the quantum of compensation as revealed from the assessment sheet (Ext. A series) that the O.P. No. 2 more or less relied on the rate of Forest Department dated 22.9.1999 which was relied and proved by the petitioner under Ext. 3. However, there may be some wrong calculation also. The matter will be more clear from the following example - For the gamai trees of girth 1.3 meters and of volume 1.05625 cum, Rs. 3900/- has been awarded though as per said notification the calculation comes to Rs. 3960/-. May be the O.P. No. 2 rounded off said Rs. 3960/- to Rs. 3900/-. There is no problem in the said rounding off. However, the particular rate of three classes of trees such as Teak / Mehaguni, Gamai and Karai were changed by the Forest Department vide notification dated 27.4.2006 (Ext. 4) which was not taken into consideration. The notice under Telegraph Act was issued in the year 2011 so automatically said notice dated 27.4.2006 (Ext. 4) has its applicability. For teak of girth 1.1 meters and volume 0.680625 cum the previous rate under Ext. 3 was Rs. 7000/- per cum which was reduced to Rs. 6000/- per cum by the subsequent notification under Ext. 4. As per the subsequent rate the value of such teak trees comes to Rs. 4083/- and as per previous rate, the value comes to Rs.4764/-, whereas the O.P. No. 2 has assessed the value of such trees to be Rs. 6000/- which means excess amount was assessed. Moreover, as per said rate of Rs.6000/- per tree, they have assessed value of 10 trees to be Rs.40,837.50 paisa in the next column though it would be Rs.60,000/-. As the O.P. No. 2 themselves appears to have relied on the Forest Department notification so, very safely the same can be relied upon in calculating for compensation by this Court, however any sort of wrong calculation is required to be corrected. For Barak bamboo the O.P. No. 2 assessed Rs. 50/- per bamboo only which appears to be a bit lesser which in the year 2011 was minimum Rs. 100/- per bamboo. Considering thus, it is held that the petitioner will get Rs.100/- for each bamboo as per the enhanced rate. Thus, considering the number of trees and also considering the Forest Department notification under Ext. 3 and Ext. 4 the following calculation is made regarding value of the trees in a pictorial chart, however, in the assessment note prepared by O.P.no.2 (Ext. A series), some percentage of amounts are found to have 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 as to on what basis said 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.
12). Value of the trees assessed by the Tribunal
Sl No.
Descript ion 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
25
1.3
1.05625
Rs.3,900/-
Rs.4119 /-
Rs. 1,02,975/-
2
Teak
85
1.1
0.680625
Rs.6,000/-
Rs. 4083/-
Rs. 3,47,055/-
3
Mehagini
32
0.95
0.45125
Rs.6,000/-
Rs.2707 /-
Rs. 86,624/-
4
Jackfruit
09
1.15
Not furnished by O.P.no.2
Not given as volume is not furnished
Rs.12,00 0/- as given by O.P.no.2
Rs.1,08,000/-
5
Korai
15
1.5
1.6875
Rs.4,500/-
Rs.7,593/-
Rs. 1,13,895/-
6
Jam
12
0.85
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. 1,68,000/-
7
Barak Bamboo
455
Not applicable
Not applicable
Not applicable
Rs.100/-
Rs. 45,500/-
Total
Rs. 9,72,049/-
13). The volume of each jackfruit tree and each Jam tree are not calculated by the Opp. party no.2, so the compensation is given on the basis of same rate which was given by Opp. Party no.2, but number of such trees has been increased. Thus, total compensation is assessed at Rs.9,72,049/-, rounded off to Rs.9,72,000/-. Issue no.2 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 as regards the deduction in view of the judgment and order passed today in CRP 85 of 2017 [Northeast Transmission Company Limited Vs. Ajit Nath] but 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 herein] 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 original petitioner, 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 been awarded compensation on the basis of 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 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 herein showing the number of trees as follows:
l. No
Item
Species
Dimension
Qty
1.
2.
3.
Trees
Crops
Others
Gamai Teak
Meghini Jack Fruit Karai
Jam Barak Bamboo
1.3mtr X 10 mtr 1.1 mtr X 9mtr
.95 mtr X 8 mtr 1.15 mtr
1.5 mtr X 12 mtr .85 mtr
10 nos 10 nos
12 nos 4 nos
10 nos 2 nos 455 nos
According to him, this is the correct number of trees which were standing on the land, right to use which were 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. A significant feature that surfaces 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 objection has sprung up all on a sudden.
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 similar cannot be 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 of the authorized 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 herein.
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.