Jagdish Chand vs Collector Land Acquisition And Another on 4 December, 2019

[Cites 4, Cited by 2]

Himachal Pradesh High Court

Jagdish Chand vs Collector Land Acquisition And Another on 4 December, 2019

Bench: Tarlok Singh Chauhan

            IN THE HIGH COURT OF HIMACHAL PRADESH,
                            SHIMLA.
                                                                     RFA No. 155 of 2014




                                                                                   .

                                                                  Decided on: 04.12.2019


               Jagdish Chand                                                   ....Appellant





                                         Versus
            Collector Land Acquisition and another                           ...Respondents.
    _____________________________________________________________





               Coram:

               Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.

               Whether approved for reporting? 1 No

               For the Appellant:                 Mr. Nimish Gupta, Advocate.

               For the Respondents:               Mr. Bhupinder Thakur, Deputy Advocate
                                                  General.


               _________________________________________________________

               Justice Tarlok Singh Chauhan, Judge (oral):

Aggrieved by the award dated 16.07.2013 whereby the Reference Petition as preferred by the petitioner came to be dismissed, the petitioner has filed the instant appeal under Section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act').

2. It is not in dispute that the land, structure and industry of the petitioner was acquired by the respondents.

Separate award qua the land was passed by the Land Acquisition Collector, whereby the petitioner was awarded a 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 06/12/2019 20:25:44 :::HCHP 2 sum of Rs.22,18,069/. Thereafter, supplementary award for the house, structure and fruit trees for a sum of .

Rs.23,99,979/ came to be passed.

3. It is this supplementary award that was challenged by the petitioner by way of Reference Petition on the ground of inadequacy. However, the Reference Court has simply rejected the Reference Petition on the ground that the

r to petitioner has already been compensated for the house, structure and fruit trees.

To say the least, the findings recorded by the Reference Court is totally perverse and contrary to law. The Reference Court has simply awarded compensation for building, structure and machine in favour of the petitioner without realising that the industry setup by the petitioner was a profit making industry and, therefore, was required to be assessed separately. The method of capitalization of returns actually received or other mode of assessment was required to be worked out by the Reference Court and the petitioner could not have been paid only the costs of the machinery or the building as that only amounts to paying the actual value of the industry without taking into consideration the returns which the petitioner had been receiving from such industry.

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5. It is for this reason that in some of the States including Jammu and Kashmir, there was specific provision .

in the Rules itself with regard to the acquisition of house property wherein the average market value of 10 years or 20 times of the only rent is adopted.

6. When properties sold with land and building, it is difficult to secure reliable evidence that sale of same land with building proximate in time to the date of notification under Section 4. Therefore, the method which is generally resorted to in determining the value of the land with building especially those used for business purposes is the method of capitalization of return actually received or which might reasonably be received from the land and the buildings. This was so held by the Hon'ble Supreme Court in The State of Kerala vs. P.P. Hassan Koya AIR 1968 SC 1201.

7. Similar reiteration of law can be found in another judgment of the Hon'ble Supreme Court in Dinanath Mahajan and others vs. Collector, Land Acquisition, Jammu AIR 1981 SC 971.

8. As observed above, since the Reference Court has not at all taken into consideration the aforesaid legal aspect of the case, the award passed by it is not sustainable ::: Downloaded on - 06/12/2019 20:25:44 :::HCHP 4 in the eyes of law and accordingly, the same is setaside and the case is remanded back to the Reference Court with a .

direction to decide the Reference Petition afresh after taking into consideration the documents placed by the parties on record.

9. Since the Reference Petition was filed way back in the year 2005, it is expected that the same shall be

10.

r to decided as expeditiously as possible and in no event later than 30th April, 2020.

The parties through their counsel(s) to appear before the Reference Court on 01.01.2020.

11. The appeal is disposed of in the aforesaid terms, so also the pending application(s) if any, leaving the parties to bear their own costs.






    4th December, 2019                    (Tarlok Singh Chauhan)
      (GR)                                           Judge





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