R.F.A. No. 2068 of 1994 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.F.A. No. 2068 of 1994 Date of Decision : 1.9.2009 M/s Budhi Raja Traders through its Prop. Ved Parkash r/o Vill. Devi Nagar, Teh. Kalka Distt. Ambala .......... Appellant Versus The State of Haryana ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Sudhir Mittal, Advocate for the appellant. Mr. Rajeev Kawatra, Sr. DAG, Haryana. **** VINOD K. SHARMA, J. (ORAL) This order shall dispose of (i) RFA No. 2068 of 1994, titled M/s Budhi Raja Traders Vs. The State of Haryana, (ii) RFA No. 2069 of 1994, titled M/s Krishan Lal and Co. Vs. The State of Haryana, (iii) RFA No. 2070 of 1994, titled Ram Kirat Vs. The State of Haryana and (iv) RFA No. 2040 of 1994, titled M/s Hanuman State Trader Vs. The State of Haryana, as common questions of law and facts are involved in these appeals. For the sake of brevity facts are being taken from RFA No. 2068 of 1994, titled M/s Budhi Raja Traders through its Prop. Ved Parkash r/o Vill. Devi Nagar, Teh. Kalka Distt. Ambala Vs. The State of Haryana. R.F.A. No. 2068 of 1994 2 The State of Haryana vide notification dated 31.8.1987 issued under Section 4 of the Land Acquisition Act, 1894 ( hereinafter referred to as “the Act”) showed its intention to acquire land in the area of Panchkula for development and utilization of land as recreational and commercial for Sector 3 Urban Estate, Panchkula. Notification under Section 6 of the Act was published in Haryana Government Gazette dated 26.7.1988. The award was given by the Land Acquisition Collector on 27.3.1989. The award was consolidated for compensation regarding to the acquired land as well as regarding building structure and trees standing thereon and also for the loss of business and shifting charges in respect of the interested persons. The land lowers being dissatisfied with the award of the Land Acquisition Collector sought reference under Section 18 of the Act seeking enhancement of the market value of the land as well as the superstructure. The question of market value of the acquired land is not the subject matter of this appeal, as the same has been adjudicated separately by filing separate regular first appeal. In the case of RFA No. 2068 of 1994, titled M/s Budhi Raja Traders through its Prop. Ved Parkash r/o Vill. Devi Nagar, Teh. Kalka Distt. Ambala Vs. The State of Haryana, the Land Acquisition Collector assessed the compensation payable for superstructure as Rs. 6691/-. The appellant had claimed compensation to the tune of rupees nine lac for building structure. He further claimed compensation for loss of business. Though on the pleadings of the parties, one of the issues framed, was “What was the market value of the acquired land at the time of acquisition ?”, as R.F.A. No. 2068 of 1994 3 already observed above, the said issue was not pressed. The only dispute with which we are concerned is with regard to the compensation payable for the superstructure. In support of the claim set up by the landowners, the appellant examined Sh. H.L. Dhammi, Superintending Engineer ( Retired) from P.W.D. ( B & R) Haryana, who appeared as PW-1 and submitted his report, which was said to have been prepared on the basis of P.W.D. Schedule of rates. The report was duly exhibited as Ex. P1. The respondent / State contested the reference by examining Sh. O.P. Sardana, Sub Divisional Engineer, HUDA, who submitted his report with regard to the assessment of the value for the superstructure. The learned reference Court accepted the version of the State and thereby assessed the compensation payable at Rs. 8363/-. The finding recorded by the learned Reference Court reads as under :- “12.Report copy of which is Ex.P-1 has been prepared by engineers of HUDA i.e. a state owned Public undertaking in the discharge of their Public duties. All the structures as claimed by the petitioner has been evaluated by engineers while preparing report Ex. R.1. It is not the case of the petitioner in the petition that any of the existing structure has not been take into consideration while preparing report Ex. P.1. R.F.A. No. 2068 of 1994 4 Hence there cannot be said to be any dispute regarding measurement of the existing structure as mentioned in report Ex. R.1. The very perusal of report Ex. R.1 show that the same has been prepared by applying different rates for different items as per Haryana P.W.D. Schedule of rates with latest premium. 10% extra for other under seen items have also been allowed while preparing report Ex. R.1. 13. On the other hand perusal of report Ex. P-1 as prepared by me expert engaged by the petitioner shows that the said report is imaginary without giving any detail of rates of different items as per Haryana P.W.D. Schedule of rates. He applied the principle of per square feet cost of existing building structure without giving any detail as to how he arrived at the said cost. He has mentioned in his report that office room was having 'kuthca' floor and wooden batten roof and that country made wood has been used. However, he has applied the rate at Rs. 60/- per sq. feet. Similarly, he has mentioned that the labour huts were having thatch roof. However, he applied construction rate as R.F.A. No. 2068 of 1994 5 Rs. 30/- per sq. feet. Even for brick wall of the jharna he applied the rate of Rs. 50/- per sq. feet. Proper depreciation of the building structure has also not been deducted by PW1 while preparing report Ex.P.1. Hence report Ex. P.1 as given by Sh. H.L. Dhammi i.e. expert appointed by the petitioner does not inspire confidence and hence the same is not accepted. 14. However, while preparing the reports Ex. P.1 to Ex. R.2 the engineers of the respondent State have deducted 20% of the assessed value on the plea that the owner did not allow dismantling of the foundation and on account of alleged non-adoption of standard section of foundation etc. However, no detail of the same has been given by the engineer of the respondent State as well. Hence in my view this deduction of Rs. 821+ 851 = Rs. 1672/- is not sustainable. 15. Further admittedly the petitioner is still in possession of the premises in dispute as he is running his business despite the fact that notification for acquisition of the building structure was issued in the year R.F.A. No. 2068 of 1994 6 1987. Hence the value of the building structure has further deprecated. Hence it cannot be said that the deprecated value of the building has not been properly assessed while preparing report Ex. R.1. 16. As a sequel to my above discussion, I am of the view that the petitioner is entitled for Rs. 8363/- as compensation for the existing building structure. Accordingly, this issue stands decided partly in favour of the petitioner and against the respondent.” The learned counsel appearing on behalf of the appellant contends that, the award passed by the learned Reference Court deserves to be modified inasmuch as the learned Reference Court had completely ignored the evidence of the expert produced by the appellant, which was not permissible. It was for the Court to have drawn a balance between the reports of the experts, produced by the State and that produced by the appellant. In support of this contention the learned counsel for the appellant has placed reliance on the judgment of this Court in the case of RFA No. 1797 of 1994 titled Ved Parkash and Company Vs. The State of Haryana, through Land Acquisition Collector, HUDA, Panchkula, decided on 26.5.2009. This Court in similar circumstances was pleased to hold that, the report by the expert produced by the appellant could not be totally R.F.A. No. 2068 of 1994 7 rejected and thereby accepted the appeal while enhancing the compensation by 50% of the assessed compensation by the learned Reference Court. The learned Sr. DAG, Haryana, however, contends that the facts of the case of Ved Parkash and Company Vs. The State of Haryana ( supra) are distinguishable, as the report by the expert of the appellant was rightly rejected, as it was not based on any settled principle and was merely imaginary, whereas that was not the case in the case relied upon by the appellant. The contention raised by the learned Sr. DAG, Haryana cannot be accepted. The facts of the case in Ved Parkash and Company Vs. The State of Haryana ( Supra ) were identical, rather the expert produced in the said case was also Mr. Dhammi, whose report has been relied upon by this Court in the case of Ved Parkash and Company Vs. The State of Haryana (Supra) In view of the law laid down by this Court in the case of Ved Parkash and Company Vs. The State of Haryana ( Supra ), these appeals are allowed. The appellants are held entitled to enhancement of the compensation by 50% of the assessed value by the learned Reference Court. The appellants shall also be entitled to other statutory benefits on the enhanced compensation. The claim regarding loss of business, is rejected in view of the decision by this Court in the case of Ved Parkash and Company Vs. The State of Haryana ( Supra ). 1.9.2009 ( VINOD K. SHARMA ) 'sp' JUDGE