ION Civil Appeal No 660 of 1988
From the Judgment and Order dated 2081987 of the Gujarat High Court in Election Petn
No 6 of 1985
Shanti Bhushan PM Raval MV Goswami and Ambrish Kumar for the Appellant
Vithalbhai B Patel and RP Kapoor for the Respondents
The Judgment of the Court was delivered by VENKATARAMIAH J
The question which arises for consideration in this appeal is whether a Letters Patent appeal lies to a Division Bench of the High Court of Gujarat from an interlocutory order passed by a Single Judge of that High Court in the course of the trial of an election petition filed under the provisions of the Representation of the People Act 1951 hereinafter referred to as the Act  or not
1047 At the election held on March 5 1985 to fill a seat in the Legislative Assembly of the State of Gujarat from the Lunavada Legislative Assembly Constituency the appellant and respondent Nos 1 to 6 were the candidates
At that election the appellant having secured the largest number of votes was declared as elected to the Legislative Assembly
Thereupon the 1st respondent filed an election petition in Election Petition No 6 of 1985 on the file of the High Court of Gujarat under section 81 of the Act questioning the validity of the election of the appellant on various grounds
The appellant contested the election petition
On the basis of the pleadings a number of issues were framed
In the course of the election petition the first respondent had made inter alia the following allegations i that bogus votes had been cast in favour of the appellant in the names of dead persons ii that votes had been cast in the names of voters who were physically far away from the constituency and had not come for voting on the date of polling and iii that votes had been cast in the names of voters who were out of the country on the day of polling
In order to establish his case the Ist respondent applied to the learned Single Judge who was trying the election petition to direct the Returning Officer to produce all the records of election and particularly the used ballot papers and counterfoils of used ballot papers the unused ballot papers the marked copies of electoral rolls and the authorisations of the polling agents of different candidates in respect of 13 villages and 14 polling booths mentioned in the application
The Ist respondent prayed for permission to inspect the ballot papers the marked copies of voters  lists and certain other materials referred to above
The appellant objected to the grant of the prayers made by the Ist respondent
After taking into consideration the evidence that had been adduced before him and hearing the arguments of the learned counsel for the parties the learned Single Judge declined to grant the application made by the Ist respondent by his Order dated July 1821 1986
Aggrieved by the order passed by the learned Single Judge the Ist respondent preferred an appeal under clause 15 of the Letters Patent of the High Court of Gujarat in Letters Patent Appeal No 3 of 1987 which was heard by a Division Bench of the High Court
Before the 1048 Division Bench the appellant contended that the appeal was not maintainable on the ground that there was no provision in the Act which permitted an appeal to the Division Bench of the High Court against an interlocutory order of a Judge hearing the election petition filed under the Act and that clause 15 of the Letters Patent was not applicable to the case
The Division Bench after overruling the objection regarding the maintainability of the appeal in view of the decision of the High Court of Gujarat in Dr Chotalal Jivabhai Patel vs Vadilal Lallubhai Mehta  Ors 12 Gujarat Law Reporter 850 allowed the appeal to the extent indicated in the course of its judgment
Aggrieved by the decision of the Division Bench the appellant has filed this appeal by special leave under Article 136 of the Constitution of India
The only point urged on behalf of the appellant in the course of this appeal is that the appeal filed under clause 15 of the Letters Patent of the High Court against the interlocutory order passed by the learned Single Judge was not maintainable and therefore the judgment of the Division Bench was liable to be set aside
In order to appreciate the submissions made by the learned counsel for the parties before us it is necessary to refer to the relevant provisions of the Constitution the Act and the Letters Patent
Article 329b of the Constitution of India reads thus 329
Bar to interfere by courts in electoral matters Notwithstanding anything in this Constitution
a       b no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature underlining by us Article 327 of the Constitution gives power to Parliament to make provisions with respect to elections to Legislatures
It reads thus 327
Power of Parliament to make provision with respect to elections to Legislatures Subject to the provisions of this Constitution Parliament may from time to time by law 1049 make provision with respect to all matters relating to or in connection with elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses
 In exercise of its powers under Article 329b read with Article 327 of the Constitution Parliament enacted the Act in the year 1951
In the Act provision was made for constituting an authority to decide election disputes as required by clause b of Article 329 of the Constitution of India
The scheme of the Act as it originally stood insofar as the presentation of the election petitions and their trial was concerned was as follows Under section 81 of the Act an election petition calling in question any election had to be presented to the Election Commission by any candiate at such election or any elector in such form and within such time but not earlier than the date of publication of the name or names of the returned candidate or the candidates at such election
The election petition so presented to the Election Commission was liable to be dismissed by the Election Commission itself under section 85 of the Act if it was not presented in accordance with the provisions of section 81 of the Act if the petition did not conform to the provisions of section 83 of the Act or if the petitioner had not enclosed with the petition a Government treasury receipt showing that a deposit of Rs 1000 had been made by him either in a Government treasury or in the Reserve Bank of India in favour of the Secretary to the Election Commission as security for the costs of the petition
If the petition was not dismissed under section 85 of the Act the Election Commission was required to appoint an Election Tribunal for the trial of the petition
Under section 86 of the Act every election tribunal appointed under this section was to consist of a Chairman who was either or had been a Judge of the High Court or a person selected by the Election Commission from the list maintained by it under clause a of sub section 2 of section 86 of the Act and two other members of whom one was a person who had been a District Judge in the State and was in the opinion of the High Court fit to be appointed as a member of the Election Tribunal and the other was an advocate of that High Court who had been in practice for a period of not less than 10 years and who was in the opinion of the High Court fit to be appointed as 1050 such member
The Election Tribunal had under section 98 of the Act the power to dismiss an election petition to declare the election of the returned candidate or the returned candidates as void and to declare the election of all or any of the returned candidates to be void and the petitioner or any other candidate was duly elected or to declare the election to be wholly void
It had also the power to pass certain other orders mentioned in section 99 of the Act
The powers of the Tribunal the procedure to be followed by it and the other details regarding the trial of an election petition had been set out in Chapter III of Part VI of the Act
Section 105 of the Act as it then stood declared that every order of the Tribunal made under the Act was final and conclusive
No appeal was provided against the order of the Tribunal interlocutory or final
Any person aggrieved by the decision of the Tribunal could only move either the High Court having jurisdiction over the matter under Article 226 or the Supreme Court of India under Article 136 of the Constitution
In NP Ponnuswami vs Returning Officer Namakkal Constituency and others  a Constitution Bench of this Court observed that the right to vote or to stand as a candidate for an election was not a civil right but was a creature of statute or special law and must be subject to the limitations imposed by it
It further observed that it was the sole right of the Legislature to examine and determine all materials retained to the election of its own members and if the Legislature took it out of its own hands and vested in a special tribunal an entirely new and unknown jurisdiction that special jurisdiction should be exercised in accordance with the law which created it
After considering the relevant provisions of the Act the Court observed at page 230 thus Obviously the Act is a self contained enactment so far as elections are concerned which means that whenever we have to ascertain the true position in regard to any matter connected with elections we have only to look at the Act and the rules made thereunder
 It proceeded further to observe at Page 231 thus It is well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it the remedy provided by that statute only must be availed of 1051 It is thus seen that when the Act was originally enacted the authority constituted by law under Article 329b of the Constitution of India to try an election petition was a single tier authority ie the Election Tribunal constituted under section 86 of the Act against whose orders interlocutory or final there was no appeal provided by the Act
Apart from the remedies available under the constitutional provisions against the orders of the Election Tribunal no other court in India had jurisdiction to interfere with the orders of the Election Tribunal either in appeal or otherwise
In 1957 Parliament perhaps felt that the scheme of the provisions relating to settlement of disputes regarding elections was not quite satisfactory
Therefore by Act 27 of 1956 the Act was amended by introducing certain changes with regard to the constitution of the Tribunal and by providing an appeal against the final orders of the Tribunal under section 98 or section 99 of the Act
Instead of an Election Tribunal consisting of three persons as it was originally provided under section 86 of the Act which was substituted in the place of the original section 86 of the Act it was provided that if an election petition was not dismissed under section 85 of the Act by the Election Commission the Election Commission shall constitute a Tribunal for trying the election petition by appointing a District Judge from a list of persons who were District Judges in the State and were in the opinion of the High Court fit to be appointed as members of the Election Tribunal
Under this provision the Tribunal thus consisted of a single member
A new chapter entitled Chapter IV A  consisting of sections 116 A and 116 D was introduced into Part VI of the Act providing for an appeal from any order of the Election Tribunal made under section 98 or section 99 of the Act to the High Court of the State in which the Tribunal was situated
The decision of the High Court on appeal under the said Chapter and subject only to such decision the order of the Tribunal under section 98 or section 99 of the Act was final and conclusive
Thus by the above amendment the authority to decide election disputes constituted under Article 329b of the Constitution of India became a two tier authority the Election Tribunal being the original authority and the High Court being the appellate authority
The decision of the High Court was no doubt subject to appeal to this Court under the provisions of the Constitution
Even here there was no provision for an appeal against the interlocutory orders passed by the Election Tribunal but they were only subject to the jurisdiction of the High Court under Article 226 of the Constitution and this Court under Article 136 of the Constitution
1052 The above situation continued till the Act was further amended by the Representation of the People Amendment Act 1966
By this amendment the power to try an Election Petition was entrusted to the High Court
The new section 80 A which was introduced into the Act reads as follows 80 A High Court to try election petitions 1 The Court having jurisdiction to try an election petition shall be the High Court
2Such jurisdiction shall be exercised ordinarily by a single Judge of the High Court and the Chief Justice shall from time to time assign one or more Judges for that purpose
Provided that where the High Court consists only of one Judge he shall try all election petitions presented to that Court
3 The High Court in its discretion may in the interests of justice or convenience try an election petition wholly or partly at a place other than the place of seat of the High Court
 A new section was substituted in the place of the former section 86 of the Act by the amendment made in the year
The relevant part of new section 86 reads thus 86
Trial of election petitions 1 The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117
Explanation An order of the High Court dismissing an election petition under this sub section shall be deemed to be an order made under clause a of section 98
2 As soon as may be after an election petition has been presented to the High Court it shall be referred to the Judge or one of the Judges who has or have been assigned by the Chief Justice for the trial of election petitions under sub section 2 of section 80A 1053 7 Every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial
By the above said amendment the former section 116 A of the Act was substituted by new section 116 A providing for an appeal against the order made by the High Court under section 98 or section 99 of the Act to this Court
The new section 116 A reads thus 116 A Appeals to Supreme Court 1 Notwithstanding anything contained in any other law for the time being in force an appeal shall lie to the Supreme Court on any question whether of law or fact from every order made by a High Court under section 98 or section 99
2 Every appeal under this Chapter shall be preferred within a period of thirty days from the date of the order of the High Court under section 98 or section 99
Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within such period
 Even on this occasion the Act did not provide for any appeal against any interlocutory order passed by Judge trying an election petition
After the above amendment the authority referred to in Article 329b of the Constitution to decide an election petition under the Act is again two tier authority the High Court Judge trying an election petition being the original authority and the Supreme Court the appellate authority
The effect of clause b of Article 329 of the Constitution as already referred to above has been explained by the Constitution Bench of this Court in NP Ponnuswami s case supra
No Court exercising power under any ordinary law other than the judge of a High Court who has been assigned the work of trying an election petition under sub section 2 of section 80A of the Act and the Supreme Court which is empowered to hear an appeal against any order passed by the Judge of the High Court under section 98 or section 99 of the Act can therefore decide any question arising out of an election petition
The power of the Supreme Court under the provisions of the Constitution which is the fundamental law of the land and not an ordinary law is however unaffected by any of the provisions of 1054 the Act
It means that when the election petition is pending in the High Court only the Judge who is asked to try an election petition can deal with questions arising in it and no other Judge or Judges of the High Court can deal with them
When the order passed by the Judge of the High Court in an election petition is an order passed under section 98 or section 99 of the Act it is subject to the appellate jurisdiction of the Supreme Court under section 116 A of the Act as Article 136 of the Constitution naturally stands excluded in view of the express provisions contained in section 116 A of the Act
The remedy available under Article 136 of the Constitution may however be resorted to by any party who is aggrieved by any order passed by the Judge trying an election petition which does not fall under section 98 or section 99 of the Act
It follows that the Division Bench of the High Court which is entitled to hear an appeal against any order of a Single Judge under clause 15 of the Letters Patent of the High Court which is an ordinary law cannot hear an appeal against any interlocutory order passed in the course of the trial of an election petition by the Judge trying an election petition since the Division Bench is not specified in the Act as an appellate authority which can deal with questions arising out of an election petition filed under the Act
Clause 15 of the Letters Patent of the High Court of Gujarat omitting the unnecessary portions reads as follows 15
Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction
And we do further ordain that an appeal shall lie to the said High court   from the judgment not being a judgment passed in the exercise of appellate jurisdiction    of one Judge of the said High Court or one Judge of any Division Court pursuant to section 108 of the Government of India Act  The relevant part of clause 15 of the Letters Patent which is referred to above provides for an appeal against a judgment passed by a Single Judge of a High Court to the same High Court and the scope of the said appellate power has been explained by this Court in Shah Babulal Khimji vs Jayaben D Kania  Anr  An appeal no doubt lies under that clause from an order of a Single Judge of the High Court exercising original jurisdiction to the High Court itself irrespective of the fact that the judgment is preliminary or final or that it is one passed at an interlocutory stage provided it satisfies the conditions set out in the above decision but the said provision cannot 1055 be extended to an election petition filed under the Act
Conferment of the power to try an election petition filed under the Act does not amount to enlargement of the existing jurisdiction of the High Court
The jurisdiction exercisable by the Single Judge under the Act is a special jurisdiction conferred on the High Court by virtue of Article 329b of the Constitution
Having regard to the history of the legislation and the limited nature of the appeal expressly provided in section 116 A of the Act it should be held that any other right of appeal excluding that under the Constitution is taken away by necessary implication
We therefore find it difficult to subscribe to the view that when once the jurisdiction to try an election petition is conferred on the High Court all other powers incidental to the ordinary original jurisdiction exercised by a Single Judge of a High Court would become applicable to an election petition filed under the Act
It is no doubt true that in Dr Chotalal Jivabhai Patel s case supra the Division Bench of the High Court of Gujarat applied the rule laid down in National Telephone Company Ltd vs Post Master General 913 AC 546 namely When a question is stated to be referred to an established Court without more it   imports that the ordinary incidents of the procedure of that Court are to attach and also that any general right of appeal from its decision likewise attaches to an election petition filed under the Act which the High Court could try in exercise of the special jurisdiction conferred on it by the Act and held that except an order under section 98 or section 99 of the Act which was made expressly appealable under section 116A of the Act to this Court all other orders passed by the Judge trying an election petition would be appealable to the High Court under clause 15 of the Letters Patent
The principle applied by the High Court is not an unqualified one
That rule itself suggests that even where a court is asked to hear a case it is quite possible that the nature of the jurisdiction may be such that all the incidents of procedure or any general right of appeal from its decision may not be attracted
Perhaps the Division Bench would not have reached the said conclusion if it had considered the effect of Article 329b of the Constitution which authorised the creation of an authority for trying disputes arising out of elections to the Houses of Parliament and to the Houses of State Legislatures and the history and the scheme of the Act and the limited right of appeal provided in section 116 A of the Act
We do not find any discussion about the effect of the constitutional provision in Article 329b in the course of the said decision
There was also no adequate appreciation of the need to construe the Act as a complete code regarding all matters relating to settlement of election disputes
It is significant that in sub section 7 of section 86 of the Act it is stated that every election petition shall be 1056 tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date on which the election petition is presented to the High Court for trial
If Parliament intended that the Division Bench of the High Court should exercise its appellate jurisdiction under clause 15 of the Letters Patent of the High Court probably it would not have enacted sub section 7 of section 86 of the Act having regard to the well known tendency of one or the other party to an election petition preferring appeals against interlocutory orders to the Division Bench
The presence of such a remedy is enough to defeat the object of enacting sub section 7 of section 86
If such appeals against interlocutory orders to the High Court are permitted perhaps no election dispute will be finally settled until the next election becomes due
The intention of Parliament is that at the level of the High Court only the Judge who is asked by the learned Chief Justice to try an election petition should be the sole Judge to decide any question arising out of any such election petition and that at the appellate stage the Supreme Court alone should deal with any matter arising out of the election petition
We are of the view that as regards the jurisdiction to try an election petition and the right of appeal of the parties to an election petition the provisions of the Act apart from the provisions in the Constitution constitute a complete code and no other Judge or Judges other than the Single Judge of the High Court who is asked to try an election petition and the Supreme Court exercising appellate powers under section 116A of the Act in respect of orders passed under section 98 or section 99 of the Act or under Article 136 of the Constitution in respect of other orders can have any jurisdiction to deal with any matter arising out of an election petition filed under the Act
We do not therefore agree with the view expressed on this question by the High Court of Gujarat in Dr Chotalal Jivabhai Patel s case supra
We therefore overrule the said decision
We also overrule the decision of the Madras High Court in Kadiravan alias Shamsudeen vs B Thirumalaikumar ILR and the decision of the Madhya Pradesh High Court in Laxmi Narayan Nayak vs Ramratan Chaturvedi and Ors
 AIR 1986 Madhya Pradesh 165 which have taken the same view as in Dr Chotalal Jivabhai Patel s case supra
We are however in agreement with the view expressed by the High Court of Allahabad in Siaram vs Nathuram  Ors 1968 All
LJ 576 and by the High Court of Rajasthan in Ramdhan vs Shanwarlal AIR which have held that by necessary implication an appeal to the High Court from an interlocutory order passed by the Single Judge of the High Court in the course of a trial of an election petition filed under the Act is excluded
The reasons given in the latter case by the Full 1057 Bench of the Rajasthan High Court are indeed quite substantial
The Division Bench of the High Court of Gujarat had therefore no jurisdiction to hear the appeal filed by the Ist respondent against the interlocutory order passed by the learned Single Judge who was trying the election petition
We therefore set aside the judgment of the Division Bench of the High Court and dismiss the Letters Patent appeal filed before the High Court
We however express no opinion on the merits of the case
The parties are at liberty to resort to any other remedy open to them in law
The appeal is accordingly allowed
No costs
SL Appeal allowed


Summary:
 The suit property known as Gopal Lal Villa situated on the outskirts of the city of Varanasi was a sprawling 60 years old building part of the estate of a Raja and vested in the appellant
It was acquired pursuant to preliminary Notification dated 471959 under the Land Acquisition Act 1894 for the purposes of the Education Department of the Government of Uttar Pradesh
The building was of about 25000 square feet plinth area comprising 35 rooms halls and other appurtenances and the 2366 acres of ground appurtenant to the building had 431 fruit and 13 timber trees and 12 bamboo clumps
The appellant claimed compensation of Rs800580 for the land valuing it at Rs352 per decimal
Rs350000 for the building and structures Rs41010 for the tree growth and Rs5000 as compensation for change of residence
The Land Acquisition Officer by his Award dated 4111961 1026 under section 11 of the Land Acquisition Act determined the market value of the land at Rs331340 valuing it at Rs140 per decimal of the building and superstructure at Rs57660 and of the tree growth at Rs35583
Being aggrieved with the aforesaid determination of compensation the appellant did not accept the offer contained in the Award and sought for a reference under section 18 of the Act to the Civil Court
The District Court enhanced the market value of the land to Rs473200 ie from Rs140 to Rs200 per decimal and left the valuation of the building and the tree growth undisturbed
The High Court affirmed the Award of the District Court and dismissed the appellant s claim for further enhancement
In the appeal to this Court it was contended on behalf of the appellant that the claim of Rs352 per decimal was not accepted and that the High Court in affirming the valuation of the land at a mere Rs200 per decimal overlooked certain settled principles of valuation
It adopted the District Judge s valuation which was the average of the valuation reflected in Ext
2 and Ext
19 while the higher of the two figures indicated by Ext
2 should have been adopted
It was further contended that the appellant was entitled to solatium and interest at higher rates in view of the re introduction of section 232 in 1972 by the UP Land Acquisition Amendment Act 1972 and under the Central Amendment Act 68 of 1984
On behalf of the respondent it was contended that the changes in law brought about by the State Amendment Act No 28 of 1972 and the Central Amending Act 68 of 1984 are presumptively prospective except to the extent that they are made expressly or by compelling implication retrospective in the extension of their benefits
On the question whether 1  HELD 1i The determination of market value of a piece of land with potentialities for urban use is an intricate exercise which calls for collection and collation of diverse economic criteria
1033C D ii The market value of a piece of property for purposes of section 23 of the Land Acquisition Act is stated to be the price at which the property changes hands from a willing seller to a willing but not too anxious a buyer dealing at arm s length
1033D iii Prices fetched for similar lands with similar advantages and potentialities under bonafide transactions of sale at or about the time of the preliminary notification are the usual and indeed the best evidences of market value
Other methods of valuation are resorted to if the evidence of sale of similar lands is not available
1033E F iv Prices fetched for smaller plots cannot form safe bases valuation of large tracts of land as the two are not comparable properties
1034E Collector of Lakhimpur vs BC Dutta AIR 1971 SC 2015 Mirza Nausherwan Khan  Anr
vs The Collector Land Acquisition Hyderabad   Padma Uppal etc
vs State of Punjab  Ors
  and Smt
Kaushalya Devi Bogra  Orsv
The Land Acquisition Officer Aurangabad  Anr   referred to
v However if it is shown that the large extent to be valued does admit of and is ripe for use for building purposes that building plots that could be laid out on the land would be good selling propositions and that valuation on the basis of the method of a hypothetical lay out 1028 could with justification be adopted then in valuing such small laid out sites the valuation indicated by sale of comparabe small sites in the area at or about the time of the notification would be relevant
1034G H vi In a case such as the above necessary deduction for the extent of land required for the formation of roads and other civic amenities expenses of development of the sites by laying out roads drains sewers water and electricity lines and the interest on the outlays for the period of deferment of the realisation of the price the profits on the venture etc
are to be made
1034H 1035A B Sahib Singh Kalha  Ors
vs Amritsar Improvement Trust and Ors referred to
vii Prices fetched for small plots cannot directly be applied in the case of large areas for the reason that the former reflects the retail  price of land and the latter the wholesale  price
1035B viii Subsequent transactions which are not proximate in point of time to the acquisition can be taken into account for purposes of determining whether as on the date of acquisition there was an upward trend in the prices of land in the area
1035C ix Where it is shown that the market was stable and there were no fluctuations in the prices between the date of the preliminary notification and the date of such subsequent transaction the transaction could also be relied upon to ascertain the market value
a When there is evidence to the effect that there was no upward surge in the prices in the interregnum
b The burden of establishing this would be squarely on the party relying on such subsequent transaction
1035C DG State of UP vs Major Jitender Kumar referred to
In the instant case the appellant did not endeavour to show that between the date of preliminary notification ie 471959 and the date of Ext
24 ie 188
1960 there was no appreciation in the value of land in the area
Therefore Ext
24 cannot be relied upon as affording evidence of the market value as on 471959
1035G H xi The valuation of land made in the present case does not call for or justify any upward revision at all
a There is no justification to interfere with the determination of the market value of the land approved by the High Court
1036C D 1029 In the instant case Rs200 per decimal for the large extent of the acquired land works out to 40 of the retail price even if Rs500 is taken as the retail  price
That apart in the case of land with potentialities for a more profitable use it is necessary to acknowledge and make due allowance for the possibility that the land might not be applied for the prospective use at all or not so applied within a reasonable time
1036H 1037A B Bombay Improvement vs Mervanji Manekji Mistry AIR 1926 Bombay 420 referred to
2i Usually land and building thereon constitute one unit
Land is one kind of property land and building together constitute an altogether different kind of property
The latter must be valued as one unit
1037C D ii However where the property comprises extensive land and the structures standing do not show that full utilisation potential of the land is realised 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
1037D E iii By the above method building value is estimated on the basis of the prime cost or replacement cost less depreciation
The rate of depreciation is generally arrived at by dividing the cost of construction less the salvage valued at the end of the period of utility by the number of years of utility of the building
1037E F iv The factors that prolong the life and utility of the building such as good maintenance influence and bring down the rate of depreciation
1037F In the instant case the estimate of the proper market value of the building has not received the requisite attention both before the High Court and the District Court
It is no doubt true that the Valuation Report Ext
I was prepared on 207
1960 one year after the date of the preliminary notification
But the extent of the built area was about 25000 sq
There is no evidence to suggest that the rates mentioned and adopted in Ext
I were not rates valid for a spread out period
No case was made out that the building had lost its utility and that the only mode of valuation appropriate to the case was one of awarding merely the salvage value
The building according to the evidence was quite 1030 strong though about 60 years old at the time
The appropriate thing to do would have been to set aside the award in so far as the valuation of the building is concerned and remit the matter for a fresh determination of its market value as on 1471959
However in the interest of justice it would be proper to make some ready and rough estimate drawing such sustenance as the evidence on record could afford and impart a quietus to this vexed litigation
Accordingly the compensation for the buildings and structures is enhanced from Rs57660 to Rs200000
1038G H 1039D G 1040G 3
Where land is valued with reference to its potentiality for building purposes and on the basis of prices fetched by small sites in a hypothetical lay out the tree growth on the land cannot be valued independently on the basis of its horticultural value or with reference to the value of the yield
This principle however does not come in the way of awarding the timber value or the salvage value of the tree growth after providng for the cost of cutting and removing
1040G H 1041A In the instant case the evidence shows that there were 471 fruit bearing trees and plants 13 timber trees and 12 bamboo clusters
Though there is some evidence as to the value of the yield there is no evidence about the timber value and fuel value of the trees
The District Judge has awarded a sum of Rs35585 for the entire tree growth
Having regard to the large number of trees and to the fact that some of them were timber trees it would be appropriate to award a lump sum of Rs7500 under this head
The compensation for tree growth is accordingly enhanced from Rs35585 to Rs7500
1041A C 4
By the UP Land Acquisition Amendment Act 1954 Section 232 had been deleted from the statute
It was re introduced by the UP Land Acquisition Amendment Act 1972
The preliminary notification for the acquisition was issued subsequent to the deletion
Whether re introduction of sub section 2 would enure to the benefit of the person whose land is acquired on the ground that proceedings in appeal were pending on the date of introduction of that provision and availability for further enhancement of the solatium and rates of interest under the Central Amendment Act 68 of 1984 are left open with consent of counsel to be agitated after final decision in Bhag Singh vs U T of Chandigarh by a larger Bench of this Court
1041E F 1042B 5
The point concerning compensation to be awarded for change of residence under clause fifthly  in section 231 does not appear to have been raised and urged before the High Court
No specific ground 1031 has also been taken in this behalf in the appeal before this Court
The appellant should not therefore be permitted to re agitate this question over again in this Court
1042D