F.A.O. No.799 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No.799 of 1989 Date of decision : 20-07-2009 Jasbir Singh .......Appellant versus Union of India ......Respondent F.A.O. No. 800 of 1989 Jaggar Singh ........Appellant Union of India ........Respondent F.A.O. No. 808 of 1989 Budh Singh etc. ........Appellants Union of India ........Respondent F.A.O. No. 809 of 1989 Gajjan Singh ........Appellant Union of India ........Respondent F.A.O. No. 810 of 1989 Mohinder Singh and others ........Appellants Union of India ........Respondent F.A.O. No.799 of 1989 2 F.A.O. No. 812 of 1989 Lal Singh ........Appellant Union of India ........Respondent F.A.O. No. 801 of 1989 Kaka Singh ........Appellant Union of India ........Respondent F.A.O. No. 802 of 1989 Saun Singh ........Appellant Union of India ........Respondent F.A.O. No. 804 of 1989 Inder Singh ........Appellant Union of India ........Respondent F.A.O. No. 23 of 1990 Ram Singh ........Appellant Union of India ........Respondent F.A.O. No.799 of 1989 3 F.A.O. No. 1026 of 1989 Dalip Singh ........Appellant Union of India ........Respondent F.A.O. No. 1037 of 1989 Nikka Singh ........Appellant Union of India ........Respondent F.A.O. No. 811 of 1989 Bachana Singh ........Appellant Union of India ........Respondent CORAM : HON'BLE MS. JUSTICE NIRMALJIT KAUR PRESENT: Mr. V.K. Kataria, Advocate for the appellant. Mr. S.K. Sharma, Advocate for the respondent. NIRMALJIT KAUR, J. These thirteen F.A.Os., bearing Nos.799, 800, 808, 809, 810, 812, 801, 802, 804, 1026, 1037 and 811 of 1989 and FAO No.23 of 1990, preferred by the landowner-claimants are being disposed of through this common judgment as the same arise out of the same notification and a common award. F.A.O. No.799 of 1989 4 The facts are being taken from FAO No.799 of 1989. The property of all the claimants along with tube-wells thereon, was acquired by the Special Land Acquisition Collector-cum-Competent Authority, Jalandhar, under Defence of India Act, 1971. The claimants filed application under Section 31 of Defence of India Act read with Rules 9 and 10 of Defence of India Rules. 1971, for referring the matter to the Arbitrator. The Arbitrator was duly appointed. The issue, in all these cases, was for the assessment of the market value of the tube-wells and structure, at the time of notification. The Arbitrator, vide his award dated 21-03-1989, discarded the evidence led by the claimants qua the price of the tube-well and held that the cost of the tube-wells assessed and paid by the authorities was an adequate price, based on the market value at the relevant time. Dissatisfied with the aforesaid valuation of the property, the appellant-land owner filed the present appeal against the said award and challenged the same, firstly, on the ground that the Arbitrator, while determining the price, as per determined value by the Government valuer, is wrong as the depreciation has been made thereon and no cut should have been applied by way of depreciation. Secondly, inspite of the expert having given the estimate while giving and explaining each and every item of the structure, according to the price at the relevant time, no compensation qua the structure, has been given at the time of acquisition and structure. Learned counsel for both the parties were heard. There is merit in the arguments raised by learned counsel for the appellant. No ground or reason has been given by the Arbitrator for discarding the evidence of the expert produced by the appellants, except that the estimate, prepared in the year 1978 and the same was produced F.A.O. No.799 of 1989 5 on 20-04-1987. The said reasoning cannot be sustained. The report cannot loose its value just because it is prepared in the year 1978. The statement of the claimants was also ignored. The expert report as well as the statement of the claimants was discarded in all the cases. It is not denied that the Arbitrator has not taken into consideration the fact that the Government valuer had wrongly applied depreciation. It is a well settled principle of law, as laid down in the judgment of Hon'ble the Apex Court, titled as State of Kerala v. Chehala Lonoppan Palu etc. U.J. (S.C.) (1979) 78 which was further relied on by the judgment of this Court, in the case of Union of India vs. Bachan Singh Revenue Law Reporter 1989(2) 140, wherein it was held that besides the imposition of cut on account of `depreciation', the court even chose to reduce the compensation as worked out by Shri H.S.Virdee A.W.1 for the reason that certain material i.e., sirki kana etc., used by the owners was going to be of no use to the acquiring authorities, and, therefore, no compensation was payable to them on that account. In me, both these cuts as imposed by the lower court, appear to be wholly unjustified, and, therefore, unsustainable. Merely on account of the fact that the buildings in question were two or four years old by the time these were acquired, there was no justification for the cut on account of depreciation because no such depreciation can safely be assumed in case of newly-constructed buildings. It is mentioned in Shri B.N. Dutta's book “Estimating and Costing” 17th Edition, that “generally there is little depreciation of the building for the first five years.” Besides this, this is what has been opined by their Lordships of the Supreme Court in an unreported judgment in State of Kerala v. Chahala Lonoppan Palu, etc. in a similar situation:- “ Depreciation in such circumstances, is a necessary consequence, but then this is not an inflexible rule regardless of the realism of things. Speaking generally, and with a practical sense, F.A.O. No.799 of 1989 6 builders of homes move in when they are barely ready for occupation, and spend the first months and years to beautify, touch up, tune up, make the adific liveably and lovable. These years enhance the home worthiness of the house rather than depreciate its value. There may be exceptions where engineering blunders, defects showing up gross neglect damaging the structure or its finishing may reduce the value. Such deterioration being the exception, the depreciation must be made out and not presumed. In these circumstances, the mere fact that after the house was completed about five years had elapsed, could not justify the claim that, mechanically, depreciation must be awarded.” Accordingly, the report of the expert, who estimated the price after giving full details, deserves to be accepted and the same be granted after deducting the amount already awarded by the Collector, regarding the estimate of tube-wells, which in each of these 13 cases, is as follows :- Case No. and party name Amount awarded by the Collector Estimate by the Expert FAO No.799 of 1989 Jasbir Singh vs. Union of India 19,687/- 36334.56 FAO No.800 of 1989 Jaggar Singh vs. Union of India 16,575/- 35951.79 FAO No.808 of 1989 Budh Singh etc. vs. Union of India 19,570/- 37181.59 FAO No.809 of 1989 Gajjan Singh vs. Union of India 19,366/- 30005.56 FAO No.810 of 1989 Mohinder Singh and others vs. Union of India 16,738/- 32611 FAO No.812 of 1989 Lal Singh vs. Union of India 16,738/- 34957.44 F.A.O. No.799 of 1989 7 Case No. and party name Amount awarded by the Collector Estimate by the Expert FAO No.801 of 1989 Kaka Singh vs. Union of India 16,738/- 38130.97 FAO No.802 of 1989 Saun Singh vs. Union of India 18,653/- 31688.22 FAO No.804 of 1989 Inder Singh vs. Union of India 19,923/- 35515.07 FAO No.23 of 1990 Ram Singh vs. Union of India 17,975/- 36,922.84` FAO No.1026 of 1989 Dalip Singh vs. Union of India 19,220/- 33825.77 FAO No.1037 of 1989 Nikka Singh vs. Union of India 16,738/-- 36934.72 FAO No.811 of 1989 Bachana Singh vs. Union of India 16,738/- 34803.57 I find force in the arguments raised by learned counsel for the appellant that the Arbitrator fell in error by not granting any compensation qua the structure. Learned counsel for the respondent could not point out as to why no compensation qua the structure was granted and has very fairly stated that the same should have been granted and are entitled to receive the same. Accordingly, the appellant is held entitled to the compensation towards the structure. The estimate for the structure in each case, as prayed for, is as follows :- Case No. and party name Superstructure estimate tubewell kotha/house FAO No.799 of 1989 Jasbir Singh vs. Union of India 35301/- FAO No.800 of 1989 Jaggar Singh vs. Union of India 1892.73/- F.A.O. No.799 of 1989 8 Case No. and party name Superstructure estimate tubewell kotha/house FAO No.808 of 1989 Budh Singh etc. vs. Union of India 3997.78/- FAO No.809 of 1989 Gajjan Singh vs. Union of India 5698.20/- FAO No.810 of 1989 Mohinder Singh and others vs. Union of India 2929.26/- FAO No.812 of 1989 Lal Singh vs. Union of India 12130.84/- FAO No.801 of 1989 Kaka Singh vs. Union of India 3697.37/- FAO No.802 of 1989 Saun Singh vs. Union of India 9178.14/-+ 5000/- + 2000= 16178.14 (pipe culvert under road and development of cavity) FAO No.804 of 1989 Inder Singh vs. Union of India 5166.65/- FAO No.23 of 1990 Ram Singh vs. Union of India 1465.83/- FAO No.1026 of 1989 Dalip Singh vs. Union of India 1664.86/- FAO No.1037 of 1989 Nikka Singh vs. Union of India 2285/- FAO No.811 of 1989 Bachana Singh vs. Union of India 3121/- It is also not disputed that the estimate, so made out, is fair and by no stretch of imagination excessive or exaggerated. Learned counsel for the respondent-Union of India, however, raised the objection that the respondent was not entitled to the benefit of solatium and interest and has been wrongly granted and the same is not payable to the appellant, in view of the law, laid down in the case of Union of India v. Hari Krishan Khosla JT 1992(5) SC 574. Learned counsel for the respondent does not dispute this legal position. Resultantly, the appeals are disposed of to the following effect :- (a) the appellants are entitled to the compensation towards tube-well as per the report of F.A.O. No.799 of 1989 9 the expert, in each case after deducting the amount already paid. (b) the value of the structure be granted as per the fair estimate submitted above. (c) the claimants are also entitled to 9% interest on the enhanced amount from the date of the award till payment). (d) The appellants are not entitled to any solatium and interest. (e) In case, the appellants have not paid the requisite sufficient court fee on the amount enhanced by this award, he is allowed two months' time to make up the deficiency in Court fee. In case of default, the claim of the appellant would be taken to have been decreed only to the extent to which he has already paid the Court fee. Disposed of in the above terms. (NIRMALJIT KAUR) JUDGE July 20, 2009 gurpreet Whether to be referred to the Reporter : Yes / No