1 R.F.A. No. 1124 of 1994 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH --- Regular First Appeal No. 1124 of 1994 and Cross-objections No. 6-C1 of 1995 Date of Decision: 18.8.2009 Municipal Corporation Amritsar through its Commissioner --- Appellant Versus Parkash Kaur and others --- Respondents CORAM: HON‟BLE MR. JUSTICE AJAY KUMAR MITTAL *** PRESENT: Mr. P.C. Rana, Advocate for Mr. S.P.S. Bhullar, Advocate for the appellant. Mr. Munishwar Puri, Advocate for respondent No.1-cross objector. Mr. O.P. Dabla, Deputy Advocate General, Punjab for respondent Nos. 2 and 3. --- AJAY KUMAR MITTAL, J This order will dispose of Regular First Appeal No. 1124 of 1994 filed by Municipal Corporation, Amritsar challenging the award dated 17.12.1993 passed by the Reference Court whereby it had increased the amount of compensation payable to the landowners for the acquired land as well as the super-structure and also the Cross-objections bearing No. 6-C.1 of 1995, filed by Parkash Kaur, land-owner - respondent No.1, for further enhancement of the amount of compensation in respect of the super structure only. 2 R.F.A. No. 1124 of 1994 Briefly, the facts of the case are that the State of Punjab acquired the land and the house constructed thereon, bearing property No. 1086/IV-26, situated in Gali Bagh Wali, Amritsar, of respondent No.1, Parkash Kaur, by issuing notification dated 2.6.1988. After taking possession of the property, the Land Acquisition Collector, Phase-D, gave its award dated 12.10.1989, Exhibit A-4, whereby an amount of Rs. 1,74,042/- was assessed for the land and Rs. 89337.60 for the super-structure standing thereon, after reducing the amount of depreciation of Rs. 1,34,006.40, totaling the amount of compensation at Rs. 2,63,379.60. It was stated in the award, Exhibit A-4, that the land of Parkash Kaur was 79.11 square yards. The land-owner feeling dissatisfied with the award of the Land Acquisition Collector, sought reference under Section 18 of the Act. The Reference Court vide the impugned award dated 17.12.1993, determined the total amount of compensation payable to the land-owner in the sum of Rs. 5,82,600/-, i.e. a sum of Rs. 2,44,200/- as market value of the land and a sum of Rs. 3,38,400/- for the super-structure standing thereon. The present appeal has been filed by the Municipal Corporation, Amritsar with the prayer that the award passed by the Reference Court increasing the amount of compensation may be set aside. On the other hand, Parkash Kaur, the land-owner still feeling not satisfied with the quantum of compensation, with regard to the valuation of the super-structure only preferred cross-objections under 3 R.F.A. No. 1124 of 1994 Order 41 Rule 22 of the Code of Civil Procedure and prayed for enhancement of the same Mr. Rana, learned counsel appearing for the appellant submitted that the Land Acquisition Collector, while assessing the market value of the acquired land had taken into consideration an area measuring 79.11 square yards whereas the Reference Court has awarded compensation in respect of an area of 111 square yards. According to the learned counsel, the Reference Court was not justified in taking the area as 111 square yards. The counsel referred to the statement of AW-2 Kanwaljit Singh, a Surveyor of the Amritsar Improvement Trust, Amritsar, produced by the claimant/land-owner herself and submitted that he during the course of his examination had stated that according to the record of the Improvement Trust, Amritsar, the measurement of the property of the claimant was 95.72 square yards. The said witness also produced on record a copy of the measurement and valuation chart, Exhibit A-2, evidencing the fact stated by him. Learned counsel for the appellant attacking on the quantum of compensation determined by the Reference Court in respect of the super-structure standing on the acquired land submitted that the Reference Court was not justified in adopting the mean of the value as taken by the Land Acquisition Collector, and as assessed by the private valuer. According to the learned counsel the depreciation from the amount of compensation of the super structure 4 R.F.A. No. 1124 of 1994 should have been reduced while determining the value of the property under acquisition. On the other hand, learned counsel appearing for the land-owner/claimant submitted that though the surveyor, AW-2 Kanwaljit Singh, was produced by the claimant herself, but in the sale deed whereby the property in question was purchased by the claimant, the area mentioned is 111 square yards and the total land involved in the sale deed, Exhibit A-1, had been acquired by the State. According to the learned counsel, the appellant had not raised this plea before the Reference Court and, therefore, the Reference Court had rightly determined the amount of compensation in respect of an area measuring 111 square yards, and there is no occasion for consideration of the question of payment of compensation for a lesser area than 111 square yards. Learned counsel appearing for the cross-objector, on the other hand, submitted that the amount of compensation in respect of the super- structure standing on the acquired land, as given by the private valuer i.e. Rs. 200/- per square feet, ought to have been accepted and granted by the Reference Court. After considering the rival submissions and going through the record, I do not find any merit in the contentions of either of the parties. The Reference Court had taken the area under consideration for determination of market value as 111 square yards as against the area of 79.11 square yards taken by the Land Acquisition Collector. Since the appellant had not raised any plea regarding acquired area 5 R.F.A. No. 1124 of 1994 being 95.72 square yards, the area taken by the Reference Court cannot be said to have been taken without any basis. The Reference Court while embarking on this issue, relied upon the area mentioned in the sale deed Exhibit A-1 wherein, undisputedly, the measurement of the area under reference was mentioned as 111 square yards. Though the surveyor produced by the land-owner, AW-2 Kanwaljit Singh, had stated that as per the record maintained by the Improvement Trust, Amritsar, the area of the acquired land was 95.72 square yards, but as per the sale deed, Exhibit A-1, which stood proved on record in accordance with law and had gone unrebutted, the claimant-land owner was owner of 111 square yards. Under these circumstances, this Court is of the opinion that the Reference Court has rightly taken the acquired area as 111 square yards. No fault can be found in the approach adopted by the Reference Court in this regard as the total area which was subject-matter of the sale deed, Exhibit A1, had been acquired. Adverting to the next submission, that the appellant- Municipal Corporation had claimed that the super-structure standing on the land was of „C-Class‟ category whereas the Reference Court assessed the value of the super-structure taking it to be of „A-Class‟ category and, thus, the value at the rate of Rs. 150/- per square feet could not have been assessed, The Reference Court while adopting the above rate has given cogent reason. It was observed by the Reference Court that the Land Acquisition Collector had made assessment of the super-structure by taking it to be of a „C-Class‟ 6 R.F.A. No. 1124 of 1994 category, but there was no mention about the details or condition of the building in the award. The only report, Mark „A‟ produced on behalf of the claimant was held to have not been proved on record in accordance with law and, thus, the same had been rightly discarded. Moreover, it was further observed by the Reference Court that the super-structure had been assessed on the basis of the Government approved rates which were based on calculations pertaining to the past record. It had come in evidence that the super-structure was of „A-Class‟ category and the said evidence had gone unchallenged. Besides this, the private valuer produced by the land-owner had assessed the value of the super-structure at the rate of Rs. 200/- per square feet. All that was further observed by the Reference Court in this regard reads thus: “The super-structure was „A‟ class while it has been assessed as „C‟ Class in the award. There is no rebuttal evidence by the respondent regarding the condition of super-structure. The private valuer has assessed the value at Rs. 200/- per square feet while in the award it is assessed at Rs. 105/- per square feet for „C‟ Class. The report of the private valuer has not been proved and the same may be exaggerated. Therefore, mean of both the valuation may be the correct value of the super-structure. Thus, the valuation of the super-structure can be safely assessed at Rs. 150/- per square feet for „A‟ category. Thus, the market value of the super structure would be 7 R.F.A. No. 1124 of 1994 Rs. 150/- per square feet for 2256 square feet and would come to Rs. 3,38,400/-.” Thus, the valuation of the super-structure fixed by the Reference Court cannot be said to be erroneous in any manner. The submission of learned counsel for the appellant regarding reduction of the depreciation from the amount of compensation of the super- structure does not carry any weight as the award nowhere shows on what basis the percentage of depreciation had been arrived at by the Land Acquisition Collector and in the absence of the same, no reliance could be placed thereon. Moreover, the appellant had not raised any issue regarding depreciation before the Reference Court. In view of the above, there is no ground to interfere with the impugned award of the Reference Court. Finding no merit in the appeal as well as the cross-objections, the same are consequently dismissed. Before parting with the judgment, it may further be noticed that the learned counsel appearing for the cross-objector, Parkash Kaur, submitted that the Land Acquisition Collector had retained 20% of the amount of compensation awarded to the cross-objector and the same has not been paid to her till date. If that be so, said amount be now released forthwith in favour of the claimant-cross objector, Parkash Kaur, in accordance with law. (AJAY KUMAR MITTAL) August 18, 2009 JUDGE *RKMALIK*