IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No.460 of 2001 Judgment reserved on:17.6.2008. Decided on: June 20, 2008 Lal Sukh Kapatia …..Appellant. VERSUS L.A.C. HPSEB, NJPC & Ors. …..Respondents. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1No For the Appellant : Mr.Ashok Sood, Advocate. For the Respondents: Ms.Anita Dogra vice Mr.Ramakant Sharma, Advocate for respondents No.1 and 3. Mr.Baldev Singh, Advocate for respondent No.2. Mr.A.K.Bansal, Addl.A.G., for respondent No.4. Kuldip Singh, Judge This appeal has been filed against the award dated 25.8.2001 passed by learned District Judge, Kinnaur Civil Division at Rampur Bushahr, in Land Reference Petition No.147 of 1995/92. 2. The facts, in brief, are that Department of MPP and Power, Government of Himachal Pradesh, issued notification under Section 4 of the Land Acquisition Act, 1894 ( for short ‘the Act’) 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… which was published in the Gazette on 18.6.1988 for acquisition of property of appellant for public purpose for construction of residential accommodation for staff of Nathpa Jhakri Power Corporation. The Land Acquisition Collector (for short ‘Collector’) assessed the market value of the house of the appellant at Rs.3,75,714 vide award dated 27.2.1991. The name of appellant is at Sr.No.335 in the list of names of interest holder in the award dated 27.2.1991. The appellant was not satisfied with the award of the Collector, therefore, he preferred reference petition under Section 18 of the Act for determination of the market value of his property. According to the appellant, the market value of the double storeyed building was Rs.2,97,400 and the market value of the land on which the house was constructed was Rs.75,000 i.e. Rs.25,000 per biswa. The appellant had rented out a portion of the house. The grievance of the appellant in the reference petition was that the Collector had not determined the compensation payable to the appellant in accordance with law. The appellant by way of reference had claimed Rs.6,77,184 in all on account of acquisition of his property. The appellant also claimed interest from the date of notification under Section 4 of the Act. 3. The respondents contested the reference petition. According to the respondents, the Collector had rightly determined the market value of the property of the appellant and the appellant is …3… not entitled to enhancement of compensation. On the pleadings of the parties, the following issues were framed:- i) Whether the petitioner is entitled to enhanced compensation for acquisition of land as alleged? OPP ii) Whether the petitioner is entitled for enhanced compensation of structure / house standing on the acquired land, as alleged? OPP iii) Whether the petitioner is entitled for interest from the date of notification under Section 4 of the Land Acquisition Act, as alleged? OPP iv) Relief. The learned District Judge answered the reference by passing the nil award on 25.8.2001. The appellant has assailed the award dated 25.8.2001 in this Court by way of this appeal. 4. I have heard Mr.Ashok Sood, the learned counsel for the appellant, Ms.Anita Dogra vice counsel for respondents No.1 and 3, Mr.Baldev Singh, learned counsel for respondent No.2, Mr.A.K.Bansal, learned Additional Advocate General, for respondent No.4 and gone through the record. On behalf of the appellant, it has been submitted that the learned District Judge has misconstrued and misinterpreted the material on record and has erred in not allowing enhancement of market value of the land, …4… house of the appellant. He has not awarded loss of income which appellant was earning by renting out the house. The appellant was not awarded any compensation on account of shifting and disturbance, an amount of Rs.19,000 which was wrongly deducted was not wrongly allowed by the learned District Judge. The learned counsel for the appellant has submitted that appellant is entitled to an amount of Rs.6,77,184 compensation as prayed in the reference petition. The learned counsel appearing for the respondents have supported the impugned award. They have submitted that the appellant is not entitled to enhancement of compensation. The compensation awarded by the Collector to the appellant is just and equitable. The appellant has failed to make out any case for enhancement by leading cogent evidence on record. 5. The appellant, in his reference petition, has claimed the following compensation:- (i) The cost and actual market value of the building at the time of notification under Section 4 of the Land Acquisition Act. Rs.2,97,400.00 (ii) The cost and actual market value of the 3 biswas land at the said time at the rate of Rs.25,000 per biswa. Rs.75,000.00 (iii) Amount payable under the provision of Sec.23(1-A) of LA from the date of notification till the date of Reference Petition. Rs.1,33,064.00 …5… (iv) Solatium @ 30% Rs.1,11,720.00 (v) Reasonable charges for shifting of residence etc. Rs.60,000.00 -------------------- Rs.6,77,184.00 -------------------- In order to appreciate rival contentions of the parties, it is necessary to refer to the evidence led by the parties. PW-1 Lal Sukh has stated that he was owner of three biswas of land at Jhakri on which he had constructed double storey RCC house consisting of six rooms in each floor with modern facilities. He was not paid compensation of his property as per market rate. He got the house evaluated from L.K.Grover, Engineer. He has also stated that he had rented out his house at Rs.2100 per month but he has not been awarded any compensation on account of loss of income. The market value of the land underneath the house at the time of acquisition was Rs.25,000 per biswa. He was not paid any amount for shifting and disturbance. An amount of Rs.19,000 was wrongly deducted from the compensation amount. In cross examination, he has stated that he had purchased land at the rate of Rs.1000 per biswa in the year 1979 which was later on acquired. He has rented out his house in the year 1988 till it was acquired. 6. PW-2 Lalit Kumar has stated that he had passed A.M.I.E. in Civil Engineering in the year 1990. In March 1991 he had visited Jhakri and inspected the building of the appellant and …6… assessed the market value of the house property as per abstract of cost Ext.PW-2/A. The detail of measurements is Ext.PW-2/B and drawing of the house property is Ext.PW-2/C. The market value of the house property of the appellant was assessed at Rs.2,97,385. He had applied H.P.P.W.D. Schedule of rates 1987 for working out the market value of the house property in 1991. He had allowed premium for working out the market value on the date of inspection. In cross examination, he had denied that he had wrongly applied premium so as to work out higher cost of the building of the appellant. 7. RW-1 K.K.Gupta has stated that he had done diploma in Civil Engineering from Roorki University in the year 1959. He served various departments including Assistant Engineer (Civil) in Himachal Pradesh State Electricity Board and then Nathpa Jhakri Power Corporation as Assistant Executive Engineer w.e.f. 1983 onwards. He inspected the building and assessed the market value as per estimate Ext.RX. The drawing of the building is Ext.RY. The detail of the measurement is Ext.RZ. As per his assessment, the market value of the structure was Rs.2,34,870 after deducting 5% of the cost as assessed by him, the material of the structure in question was given to the appellant. 8. The appellant, except for placing on record abstract of cost Ext.PW-2/A, detail of measurement Ext.PW-2/B, drawing of the house property Ext.PW-2/C, has not led any documentary evidence …7… to show the market value of the house property at the time of publication of notification under Section 4 of the Act. The land and house of the appellant was acquired, therefore, what was required to be proved on record on behalf of the appellant for assessing the market value of his property was market value of similar type of house property when his house property was acquired. In his own statement, as PW-1, he has not stated what was market value of his house property when notification under Section 4 of the Act was published. He has not produced any sale deed of the area showing the market value of similar house property at the time of notification under Section 4 of the Act. He has not led any worth believing evidence to show that the house was in fact rented out to some tenant. He could have easily examined the person whom he allegedly rented out the house. 9. In abstract of cost Ext.PW-2/A, the value has been shown Rs.2,97,400. PW-2 in his statement has stated that he inspected the building of the appellant in March 1991. It has not been stated in abstract of cost Ext.PW-2/A that cost shown in Ext.PW-2/A is based upon rates of which year, but in his statement PW-2 has stated that he had allowed premium for working out the market value on the date of inspection. He has also stated that he had applied H.P. PWD Schedule of rates 1987 for working out the market value of the house property. The notification under Section 4 of the Act was published on 18.6.1988. Therefore, the market …8… value of the house property was to be seen as it existed around 18.6.1988. PW-2 has erred in allowing premium on 1987 H.P. PWD Schedule of rates up to 1991 in preparing the abstract of cost Ext.PW-2/A in the year 1991. The abstract of cost Ext.PW-2/A which was prepared in the year 1991 cannot be relied for assessing the market value of house property as on 18.6.1988, the date of notification under Section 4 of the Act. The appellant has failed to lead convincing evidence what was the market value of the house property on 18.6.1988. Separate claims of the appellant for house and land are also not in accordance with law. The building with the land is to be assessed as a single unit. In Ratan Kumar Tandon and others versus State of U.P. (1997) 2 SCC 161, the Hon’ble Supreme Court has held as follows:- “… .. It is well settled law that when land and building are acquired by a notification, the claimant is not entitled to separate valuation of the building and the land. They are entitled to compensation on either of the two methods but not both. If the building is assessed, it is settled law that the measure of assessment be based on either the rent received from the property with suitable multiplier or the value of the building is the proper method of valuation. In this case, since the land is separately valued, the building cannot again be separately assessed and compensation awarded except the value of debris.” …9… In view of the law laid-down by the Supreme Court, the appellant is not entitled to separate assessment of land and building. Even otherwise the appellant has not led any cogent evidence what was the market value of similar type of land and building separately around 18.6.1988, the date of notification under Section 4. The appellant has claimed Rs.60,000 shifting charges but the appellant has miserably failed to prove this part of the claim. In his statement, as PW-1, the appellant has nowhere stated that he had incurred any expenses for shifting. The material of structure was given to the appellant and, therefore, after assessment of cost 5% amount was deducted from the cost so assessed in view of the return of material to appellant which he in fact had taken away. This has been so stated by RW-1 K.K.Gupta. In the reference petition, the appellant has nowhere stated that the material of the structure was not returned to him but in his statement as PW-1 he has stated that he had not carried away the material of the house which was acquired. This part of the statement of appellant is after thought and cannot be relied. The material of the house was returned to the appellant, therefore, the Department was justified in deducting some cost of that material which was assessed at 5% of the cost of the building assessed by the expert of the respondents. No fault can be found with such deduction. The appellant has failed to make out any case for interference. The learned District Judge has rightly appreciated the material on record while making nil award. …10… 10. No other point was urged. 11. The result of the above discussion, appeal fails and is accordingly dismissed with no order as to costs. June 20, 2008 (soni) ( Kuldip Singh ) Judge.