Himachal Pradesh High Court
State Of Himachal Pradesh vs Badri Nath Kapoor on 28 October, 1985
Equivalent citations: AIR1987HP86
JUDGMENT V.P. Bhatnagar, J.
1. This regular First Appeal has been preferred against judgment dt/- Aug. 24, 1974 of the learned District Judge, Solan and Sirmur Districts at Solan whereby he partly accepted the reference made under Section 18 of the Land Acquisiton Act (hereinafter referred to as the Act) enhancing the amount of compensation from Rs. 5429.15 p to Rs. 13435/-, thus allowing an enhanced amount of compensation to the tune of Rs. 8005.85P to the claimant. Aggrieved from the aforesaid judgment, the State of Himachal Pradesh has preferred the present appeal.
2. The facts of this case are that a notification under Section 4 of the Act was issued on Oct. 13, 1970 with respect to land measuring 9 biswas and a building constructed thereon. This property was required for the widening of Kalka-Shimla Road. The land is situate in village Datyar near Delhi, Tehsil Solan.
3. The Land Acquisition Collector allowed a sum of Rs. 225/- towards the cost of the land measuring 9 biswas, a sum of Rs. 3316/- as the costs of the house, Rs. 1180/-as the cost of 5 fruit trees and a sum of Rs. 708.15P as solatium under Section 23(2) of the Act These amounts total up to Rs. 5429.15 P. The learned District Judge enhanced the price of the land from Rs. 2257- to Rs. 4500/- the cost of the house from Rs. 3316/- to Rs. 6000/-. The price awarded against the fruit trees was not contested before him.
4. The first contention of the learned Advocate General on behalf of the State of Himachal Pradesh has been that the learned District Judge had no jurisdiction whatsover to allow any enhancement in the amount of compensation due to the express bar contained in Sub-section (2) of Section 25 of the Act. This argument proceeds on the basis that the claimant omitted, without sufficient reason, to prefer a claim in response to the notice served upon him under Section 9 of the Act. In order to succeed on this point, it is incumbent upon the State to establish that the notice postulated under Section 9 of the Act was duly served upon the claimant. It may be stated here that the public notice envisaged in Sub- sections (1) and (2) of Section 9 will not constitute due service for the aforesaid purpose for the simple reason that Sub-section (3) of Section 9 clearly provides that the claimant has to be served personally in addition to the issuance of the aforesaid public notice. Now, the very averment made in the reply filed by the State of Himachal Pradesh to the application for reference made under Section 18 of the Act shows that the claimant in this case was not served personally. In fact, the averment is to the effect that the notice under Section 9(3) of the Act was left with one Bishan Dass who had "promised to deliver the same to him". Bishan Dass has stepped into the witness box as R.W. 1 and he has nowhere deposed that he delivered this notice to the claimant. There is, in fact, not an iota of evidence to show that the claimant had been properly served. It, therefore, follows that the claimant was under no legal obligation to prefer a claim when he had not been specifically called upon to do so by way of service of a notice under Section 9(3) of the Act. Where the State intends to derive benefit out of the provisions of Section 25(2), it will have to show as a condition precedent that the claimant had been properly served under Section 9 of the Act. The burden of establishing the service of such notice squarely rests on the shoulders of the State Government, as held in Tarwadi Ravishanker Mohan Lal v. Collector, Panchamahals, AIR 1969 Guj 191 and Special Land Acquisition Officer, H.D.P. Ghataprabha v. Shivaputra Appayya Patil, AIR 1974 Mys 5. The law laid down in Velagapudi Kanaka Durga v. District Collector, Krishna District Chilakapudi, AIR 1971 Andh Pra 310 is to the effect that the notice to be served must fix a date enabling the claimant to prefer his claim within 15 days from the date of service of the notice.
5. The State of Himachal Pradesh did raise an objection before the learned District Judge about the applicability of Section 25(2) of the Land Acquisition Act. Issue No. 1 was, therefore, framed incorporating the point whether a notice under Section 9(3) of the Act was validly served on the petitioner and about its effect. Its onus was placed rightly on the acquiring authority but, curiously enough the issue was struck off as redundant because the petitioner conceded it at the time of arguments and it was further noticed that the decision of the issue either way was not going to affect the determination of the controversy between the parties. The learned District Judge obviously fell into an error in returning that finding. This mistake can be rectified during this appeal but, as stated above there is no evidence whatsoever that the claimant was properly served as stipulated under Section 9(3) of the Act. If, so, the benefit of Section 25(2) is not available to the State of Himachal Pradesh at all with the result that the first contention raised by the learned Advocate General must be repelled.
6. On merits, the learned Advocate General has urged that there was no justification for enhancing the price of land from Rs. 500/- per bigha to Rs. 10,000/- per bigha and that of the house from Rs. 3316/-to Rs. 6000/-. Admittedly, the land and the house were situate on the main Kalka-Shimla National Highway and, as disclosed by the testimony of P.W. 5 Vidya Devi, a liquor vend was being run in that house along with the sale of meat pickle. No doubt, the evidence furnished by the certified copies of the mutations which have been placed on the record do not afford a safe basis for determining the price of this land and the parties are required to adduce more evidence as held in Union of India v. Paras Ram, ILR (1979) Him Pra 305 and State of Himachal Pradesh v. Daulat Ram Attri, ILR (1981) Him Pra 152 : (AIR 1981 Him Pra 71) but I am not prone to remand this case as the enhanced amount of compensation is not much and the remand of the case would cause avoidable torture to the parties by way of protracted litigation, specially keeping in view the fact that the notification under Section 4, of the Act was issued in this case as far back as in the year 1970. It is also to be kept in mind that the basis adopted by the learned District Judge is not totally untenable and that some element of conjecture and guess work has to creep in while making such evaluation as held in Krishna Yachendra Bahadurvaru v. Special Land Acquisition Officer, City Improvement Trust Board, Bangalore, AIR 1979 SC 869. At the same time, I find no reason whatsoever to take a different view as far as the enhanced amount of compensation awarded for the cost of the building is concerned. The total cost of the building was assessed by the P. W.D. authorities at Rs. 8881/- but a sum of Rs. 5565.42P was allowed as the amount of depreciation on the basis that its remaining life was only 20 years. The claimant had, however, changed the entire roof of the building at the cost of Rs. 2000/- only 3 years before the issuance of the notification. P.W. 3 B. D. Gulati, Deputy Chief Engineer, Mohan Meakin Breweries had stepped into the witness box to depose that the remaining life span of the building was 45 to 50 years. The building was fetching an annual rent of Rs. 600/- to the claimant. Taking all the alone factors into consideration, the enhancement of the amount of compensation from Rs. 3316/- to Rs. 6000/- towards the cost of the building cannot be termed as excessive.
7. Mr. Inder Singh, learned counsel for the claimant, has drawn my attention to the provisions of Section 30(2) of the Land Acquisition (Amendment) Act 1984 and the interpretation the aforesaid provisions have received at the hands of the Supreme Court in Bhag Singh v. Union Territory of Chandigarh, (1985) 3 SCC 737 : (AIR 1985 SC 1576) to urge that the claimant should be paid compulsory acq uisition charges at the rate of 30% instead of 15% Bhag Singh's case (supra) is not a direct authority on this point because the appeal in that case had been preferred by the claimant. In the present case, the appeal has been preferred by the State of Himachal Pradesh against the enhancement and it cannot be said that the present order being passed is "in appeal against any such award" within the ambit of Section 30(2) of the Land Acquisition (Amendment) Act, 1984. In case, hypothetically speaking, the State Government decides to withdraw this appeal, it will have to be dismissed and consequently there will be no proceedings left before the Court wherein enhanced amount of solatium could be awarded.
8. As a result of the above discussion, this appeal is dismissed but the parties are left to bear their own costs.