Himachal Pradesh High Court
Land Acquisition Collector & Another vs Roshan Lal on 20 June, 2015
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 496 of 2011 a/w RFA Nos. 295, 296, 297, 298, 299, 300, 301 and 483.
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Decided on: 20th June, 2015
1. RFA No. 496 of 2011.
Land Acquisition Collector & Another .......Appellants.
Versus
Roshan Lal ....Respondent.
2. RFA No. 295 of 2011.
Land Acquisition Collector & Another r .......Appellants.
Versus
Sarla Devi ....Respondent.
3. RFA No. 296 of 2011.
Land Acquisition Collector & Another .......Appellants.
Versus
Sher Singh ....Respondent.
4. RFA No. 297 of 2011.
Land Acquisition Collector & Another .......Appellants.
Versus
Prittam Chand ....Respondent.
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5. RFA No. 298 of 2011.
Land Acquisition Collector & Another .......Appellants.
Versus
.
Tedhi Singh ....Respondent.
6. RFA No. 299 of 2011.
Land Acquisition Collector & Another .......Appellants.
Versus
Dola Ram ....Respondent.
7.
RFA No. 300 of 2011.
Land Acquisition Collector & Another Versus .......Appellants.
Jeevan ....Respondent.
8. RFA No. 301 of 2011.
Land Acquisition Collector & Another .......Appellants.
Versus
Raghubir Singh ....Respondent.
9. RFA No. 483 of 2011.
Land Acquisition Collector & Another .......Appellants.
Versus
Bhagirath ....Respondent.
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Coram
The Hon'ble Mr. Justice Dharam Chand Chaudhary, Judge. Whether approved for reporting?1No. For the appellant(s) : Mr. D.S. Nainta, Mr. Virender .
Verma, Addl. A.Gs. with Mr. Pushpinder Jaswal, Dy. A.G. For the respondent(s) : Mr. Sunil Mohan Goel, Advocate.
Dharam Chand Chaudhary, J. (oral).
This judgment shall dispose of the present appeal and also eight other appeals detailed hereinabove involving identical questions of law and facts and having arisen out of the same award.
2. As a matter of fact, Land Reference Petition No. 42 of 2009 was preferred by Roshan Lal appellant in this appeal against the supplementary award No.1 of 2007, dated 12.1.2007 (Ex.PA) of Phati Dashad, Tehsil Sainj District Kullu. Similar references were preferred by the appellants in other eight appeals referred to hereinabove. All the nine 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 18:25:18 :::HCHP 4references were consolidated by the Court below with reference petition No. 42 of 2009 for common trial. Evidence for the purpose of all the references .
was recorded in reference petition No.42 of 2009.
Consequently, all the petitions came to be decided by a common award passed on 31.5.2010 whereby learned trial Court has held the petitioners, respondents herein, entitled to the market value of their acquired houses as assessed by RW-1 Shri G.C. Gupta, of course, without deduction of any amount on account of depreciation and with increase at the rate of 40% on the market value of the houses so assessed by Mr. Gupta. Other statutory benefits payable under Section 23(1) (a) and 23(2) and also the interest payable under Section 28 of the Act were also granted in favour of the respondents-petitioners.
3. The respondent-State, appellant herein, aggrieved by the impugned award has challenged the legality and validity thereof in these appeals on ::: Downloaded on - 15/04/2017 18:25:18 :::HCHP 5 the common grounds that the Court below has failed to appreciate the facts and evidence available on record in its right perspective and the same rather has .
been misread and misconstrued and as a result thereof, a wrong conclusion has been drawn. The statutory benefits, allegedly not admissible, have erroneously been granted in favour of the petitioners-
respondents. The Court below allegedly erred in law and facts while awarding the compensation in respect of the acquired houses without deduction on account of depreciation and with 40% increase.
4. Learned Additional Advocate General during the course of arguments has mainly emphasized that the compensation in respect of the house in existence over the acquired land was rightly assessed and awarded by Land Acquisition Collector.
It has, therefore, been urged that there was no occasion to the Court below to have awarded the compensation in respect of the houses as per the ::: Downloaded on - 15/04/2017 18:25:18 :::HCHP 6 assessment made by RW-1 Shri G.C. Gupta, without deduction on account of depreciation from the assessment so made by him with 40% increase. As a .
matter of fact, this is the only grievance brought to this Court by the appellant-State, in these appeals.
5. On the other hand Mr. Sunil Mohan Goel, Advocate has very ably argued that the award passed by Court below calls for no interference in these appeals r being based on the evidence available on record and also the law applicable to the given facts and circumstances of this case.
6. The controversy is not much and rather lies in a narrow compass. The only question, which needs determination in these appeals, is as to whether the award under challenge is legally and factually sustainable or not. The answer to this poser in all fairness and also in the ends of justice would be in affirmative for the reasons that the assessment of the value of the houses belonging to the respondents-
::: Downloaded on - 15/04/2017 18:25:18 :::HCHP 7petitioners, in existence over the acquired land has been made by Engineer G.C. Gupta, none-else, but an officer of the Public Works Department. Mr. G.C. .
Gupta has stepped into the witness box as RW-1 and proved the reports Ex.PW-8/B, Ex.PW-8/D, Ex.PW-8/F, Ex.PW-8/H, Ex.PW-8/J, Ex.PW-8/L and Ex.PW-8/N, he submitted. No doubt, Mr. Gupta has made deduction on account of depreciation out of the assessment of the valuation of the houses, he made, however, no such deduction is permissible.
7. The apex Court in Union of Indian versus Savjiram and another (2004) 9 SCC 312, relied upon by learned trial Court also, has held that no deduction on account of depreciation can be made from the market value of the house assessed and that the compensation payable in respect of the house has to be calculated by taking into consideration the cost of construction at the rates prevalent at the time of assessment of the compensation by working out the ::: Downloaded on - 15/04/2017 18:25:18 :::HCHP 8 current value of the materials and that there is no scope for any further deduction within the value of the house/building so assessed. Therefore, the apex .
Court in the judgment supra has categorically held that any deduction towards depreciation is not permissible. The trial Court has, therefore, not committed any illegality or irregularity in awarding the compensation in respect of the houses as per the assessment made by RW-1 Shri R.C. Gupta without any deduction on account of depreciation and with 40% increase thereon.
8. If coming to the grouse of the appellant-
State that 40% increase in the amount so assessed was impermissible, the law on the point is no more res integra because a co-ordinate Bench of this Court in National Hydro Electric Power Corporation versus Smt. Sumundari & Others, 2007 (3) S.L.J. (H.P.) 2021, taking into consideration the value of the houses so assessed on the basis of 1987 schedule of rates whereas the ::: Downloaded on - 15/04/2017 18:25:18 :::HCHP 9 property acquired vide notification dated 13.6.1992, under Section 4 of the Act, approved the increase to the extent of 50% on the market value of the houses .
so assessed by the District Judge. This judgment reads as follows:
15. The value of the superstructures was done by the project authorities on the basis of 1987 schedule of rates and no premium was given on 1987 schedule of rates even though the property was acquired vide notification dated 13.6.1992 under Section 4 of the Act. A r feeble attempt was made by the learned counsel for the Corporation that claimants/ petitioners are not entitled to compensation for the structures built on the acquired land, his submission is that market value of the structures built on acquired land is included in the market value of the land. This argument of the learned counsel has no force. The structures on the acquired land are on very small area. The valuation of the structures has been done separately by the project authorities themselves. There is no absolute bar that no valuation of the structures standing on the acquired land can be done ::: Downloaded on - 15/04/2017 18:25:18 :::HCHP 10 separately, it depends upon the facts of the case, where acquired area is large and structure on such acquired area is on small area then land and structure can be assessed .
separately. In Kirtan Tandon Versus Allahabad Development Authority & Another [(2004) 10 SCC 745], the Supreme Court has held as follows:-
"... .... But there is no hard and fast rule that land and building must be valued as one unit. They can be separately assessed if the large portion of the land is lying vacant and is capable of better r use as stated by Venkatachaliah, J. (as His Lordship then was) in Administrator General of W.B. v. Collector, Varanasi and it will be useful to extract the relevant part of AIR para-8 of the Report: (SCC pp.159-60, para 17) 'Usually, land and building thereon constitute one unit. Land is one kind of property; land and building together constitute and altogether different kind of property. They must be valued as one unit. But where, however, the property comprises extensive land ::: Downloaded on - 15/04/2017 18:25:18 :::HCHP 11 and the structures thereon do not indicate a realization of the full developmental potential of the land, it might not be impermissible .
to value the property estimating separately the market value of the land with reference to the date of the preliminary notification and to add to it the value of the structures as at that time. In this method, building value is estimated on the basis of the prime cost or replacement r cost less depreciation. The rate of depreciation is, generally, arrived at by dividing the cost of construction (less the salvage value at the end of the period of utility) by the number of years of utility of the building. The factors that prolong the life and utility of the building, such as good maintenance, necessary influence and bring down the rate of depreciation.' ::: Downloaded on - 15/04/2017 18:25:18 :::HCHP 12 In the present case, structures are on very small area in comparison to whole of the acquired land, therefore, land and structures can be assessed as different units.
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16. It is common knowledge that there is general trend of increase in cost of construction. The State has acquired land and structures under different notifications for construction of reservoir of Chamera Dam. In RFA No.72 of 1998, along with RFAs No.75, 56 and 63 of 1998 decided on 30.5.2007 and RFA No.127 of 1998 decided on 1st June, 2007, this Court has approved 50% increase in market value of the structures over and above the 1987 schedule of rates. The land and structures in those cases were also acquired for construction of reservoir of Chamera Project on the basis of notifications under Section 4 of the Act dated 6.6.1992 and 16.6.1992. In the present case, the notification under Section 4 is of 13.6.1992, therefore, 50% increase given by the District Judge for assessing the market value of the structures over and above the 1987 schedule of rates is just, reasonable, and not arbitrary. The claimants/petitioners have not otherwise ::: Downloaded on - 15/04/2017 18:25:18 :::HCHP 13 independently proved that at the time of notification under Section 4 of the Act what was the value of their superstructure standing on the acquired land."
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9. If coming to the case in hand, notification under Section 4 of the Land Acquisition Act though issued on 5.4.2005, has been published in the official gazette on 16.4.2005. RW-1 Shri G.C. Gupta, has made the assessment of the market value of the acquired houses on the basis of H.P. Schedule of Rates 1999. Therefore, applying the ratio of the judgment of this Court in Sumundari's case supra, learned trial Court has not committed any illegality and irregularity by giving 40% increase, over and above the market value of the houses belonging to the respondents-petitioners assessed by RW-1 G.C. Gupta. Mr. Sunil Mohan Goel, Advocate while stating at the bar that in identical matters, the enhanced compensation, in respect of the houses with 40% increase has allegedly been paid to the claimants by ::: Downloaded on - 15/04/2017 18:25:18 :::HCHP 14 the appellant-State in compliance with the award has produced the copy of such award dated 31.8.2010 in Reference Petition No.28 of 2009 titled Shiv Ram and .
others versus Collector Land Acquisition and another and its connected matter ten in number for perusal of this Court. When in identical matters, the appellant-
State has implemented the award same and similar in nature, these appeals being without any substance seems to have been filed merely for rejection.
10. In view of what has been stated hereinabove, I find no force in the present appeal and its tagged matters as aforesaid and the same are hereby dismissed. Consequently, the award under challenge is upheld.
11. Authenticated copy of this judgment be placed on the record of each of the connected appeals.
June 20, 2015 (Dharam Chand Chaudhary),
(ps) Judge
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