IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: RFA.No.78/2002. Date of Decision :20th August, 2008 Tikkam Ram ….Appellant. Versus: Land Acquisition Collector & others …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Himat Negi, Advocate vice Mr. B. S. Attri, Advocate. For respondents 1 & 2. Mr.Ramakant Sharma, Advocate. For respondent 3 : Mr. R. K. Bawa, A. G. with Mr. Vivek Thakur, Addl. A. G. and Mr. Anil Jaswal, Dy. A. G. Sanjay Karol, J.(Oral). The present appeal arises out of the award dated 25.8.2001 passed by the District Judge, Kinnaur Civil Division at Rampur Bushahr, H.P. in Land Reference Petition No. 255 of 1995/93 titled as Tikkam Ram vs. The Land Acquisition Collector & Others, dismissing the reference petition. Vide Notification dated 5.3.1988 issued under Section 4 of the Land Acquisition Act (hereinafter referred to as ‘the Act’) (published in H. P. Gazette on 18.6.1988), the appellant’s land comprising Khasra No. 497 min in Village Jhakri, District Kinnaur, H.P. was sought to be acquired. On the said land, the appellant had 2 constructed a single storeyed house. The Award under Section 11 of the Act, bearing No. 17 of 1991 dated 4.7.1991, was passed and possession taken. The claimant had agreed for taking away the material of the structure of the house after deduction of 5% of the costs assessed by the acquiring authorities. In terms of the award, the claimant was entitled to Rs.98,640/- as compensation for the acquisition of the super structure. Being dis-satisfied with the same, a Reference Petition under Section 18 of the Act for determination of the market value of the house property was filed before the District Judge, Kinnaur Civil Division at Rampur Bushahr, claiming a compensation of Rs.5,36,500/-. In support of his claim, the claimant examined himself as PW-1 and also an Expert Shri L. K. Grover (PW-2) who proved on record his valuation report, which is extract of cost Ext.PW-2/A, detail of measurement Ext.PW-2/B and drawing Ext.PW-2/C. As per his valuation, the market value of the super structure was Rs.59,009/- plus other values totalling to be Rs.1,14,950/-. The respondents examined an expert witness, namely, Shri K. K. Gupta (RW-1), who proved his valuation report Ext.RX and drawing Ext.RY valuing the property to be Rs.63,700/-. Appreciating the material on record, the Court below dismissed the reference petition. The Court found that both the Experts had valued the property on the basis of the H.P.P.W.D. Schedule of Rates of 1987 and since the acquisition proceedings pertained to the year 1988, premium of four years as claimed by 3 the claimant could not be awarded; the evidence led by the respondents to prove the true and correct market value of the super-structure was cogent, reliable and acceptable; the Court disbelieved the claimant’s report for the discrepancies in the statements of the claimant’s witnesses and the report with regard to the structure existing at the site and also the nature of the wood used for construction of the house. The claimant’s evidence was disbelieved and the claim petition rejected. I have heard learned counsel for the parties and also perused the entire record. While making submissions, learned counsel for the appellant could not show as to how the Court below had erred in disbelieving the claimant’s report. Perusal of the reports Ext.PW- 2/A, Ext.PW-2/B, Ext.PW-2/C and also Ext.RX would show that both the reports have been prepared on the basis of the H.P.P.W.D. Schedule of Rates of the year 1987. Since the land was acquired in terms of Notification published on 18.6.1988, the premium of 4 years as claimed by the claimant cannot be allowed simply because the report Ext.PW-2/A was prepared four years after the date of acquisition. There is no basis or justification for the same. I have perused the statement of Shri K. K. Gupta (RW-1) and I am in agreement with the findings returned by the Court below. His deposition is clear, cogent, convincing and reliable. Report Ext.RX has been prepared by him. Importantly, the basic market value of the superstructure as determined by 4 PW-2 in terms of Report Ext.PW-2/A is less than what has been determined by the RW-1. The report prepared by the respondents, which was the basis for determining the compensation by the Collector while passing its award, was rightly taken into account. Perusal of the same would show that the increase in the price index has not been taken into account at the time of preparation of this report. Therefore, 10% increase is justifiable on the market value of the house property so determined in terms of report Ext.RX. Accordingly, the appeal is partly accepted and it is held that the claimant shall be entitled to an increase by 10% on the value of Rs.63,700/-. The claimant shall also be entitled to all statutory benefits on the enhanced amount. The submission of the learned counsel for the appellant that enhancement ought to have been allowed on the basis of loss of profit needs to be rejected as the assessment has been carried out not on the basis of capitalization but on the basis of cost of the super-structure. This is the view already taken by this Court in RFA No. 460 of 2001 titled as Lal Sukh Kapatia v. LAC & Others decided on 20.6.2008. For the aforesaid reasons, the present appeal is partly allowed and the impugned award is accordingly modified. (Sanjay Karol), Judge. August 20, 2008. (rana)