RFA No. 1526 of 1987 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No. 867-CI of 1992 and R.F.A. No. 1526 of 1987 (O&M) Date of decision: February 19,2010 Harchal Singh .. Appellant v. The State of Punjab .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. M. L. Saggar, Senior Advocate with Mr. J. S. Dhaliwal, Advocate for the appellant. Mr. Palvinder Singh, Senior Deputy Advocate General, Punjab. .. Rajesh Bindal J. Challenge in the present appeal is to the award dated 28.2.1987, passed by the learned court below, whereby the petition filed by the appellant under Section 18 of the Land Acquisition Act, 1894 (for short, `the Act') claiming enhancement of compensation on account of super structure and damages on account of severance for acquisition of land, was dismissed. Briefly, the facts are that the land owned by the appellant in the area of villages Kambali and Taraf Kumbra, Tehsil Kharar, District Ropar (now Rupnagar), was acquired vide notification dated 4.2.1981 issued under Section 4 of the Act for the purpose of expansion of Industrial Focal Point, Mohali. The Land Acquisition Collector (for short, `the Collector') assessed the market value of the acquired land. Dissatisfied with the award, the land owner filed objections and the value thereof was ultimately determined by this court, which attained finality. However, the value of the land is not subject matter of the dispute in the present appeal. As there were certain structures existing on the acquired land, the award thereof was pronounced subsequently on 18.9.1984 and the value, as assessed by the Collector of the super structure and the tubewell existing on the acquired land, was assessed at Rs. 13,931/-. Dissatisfied with the award, the appellant filed objections, which were referred to the learned court below. After considering the evidence produced by the parties on record, the learned court below did not find any merit in the submissions made by the appellant and RFA No. 1526 of 1987 [2] dismissed the objections filed by the appellant. It is the aforesaid award, which is impugned in the present appeal. Learned counsel for the appellant submitted that the appellant in the present case had made two-fold submissions in the objections filed, namely, that amount of compensation, as had been assessed for acquisition of super structure and tubewell existing on the acquired land was not adequate and the same deserved enhancement and further that for the purpose of making the left over portion, i.e., unacquired land cultivable, the appellant had to instal a tubewell therein, the cost of which was around Rs. 70,000/- to Rs. 80,000/-. It was on account of the fact that part of the land measuring 7 kanals and 7 marlas was left out of acquisition. The tubewell, which was existing on the acquired portion of land, had become useless and the appellant was entitled to claim damages on account of severance, which had resulted in making the unacquired portion of land unirrigated. In support of the contention regarding proper valuation of the acquisition of super structure and tubewell standing on the acquired land, it was submitted that the evidence produced by the appellant in the form of estimate prepared by Som Nath Saini was wrongly discarded, where detailed assessment was made regarding the super structure existing on the acquired land also the material used in the tubewell, which amounted to Rs. 28,435.91. In his cross- examination, no dent could be put to his testimony, whereas the estimate produced by the State in the form of report of Amar Chand Bansal was relied upon and the claim of the appellant was dismissed. No discrepancy was pointed out as such in the estimate prepared by the witness produced by the appellant. In the absence thereof, the claim of the appellant deserves to be accepted. In so far as the second claim is concerned, it was submitted that once it had come on record that on account of acquisition of large chunk of land owned by the appellant, small portion of land was left out and the tubewell installed by the appellant was existing on the acquired portion, the appellant was required to be compensated on account of severance as the unacquired portion of land could not be irrigated. To make the left out portion of the land cultivable, the appellant had installed the tubewell, the cost of which was estimated at Rs. 70,000/- to Rs. 80,000/-. The compensation on that account was claimed in the present proceedings, where the award was for acquisition of super structure and the tubewell only because in the earlier award only the value of the land was assessed and the acquisition proceedings for super structure and the tubewell were not complete. The State could leave the portion of the tubewell ultimately permitting RFA No. 1526 of 1987 [3] the appellant to use the same for irrigating his left out portion of the land. Subsequent to the filing of the appeal, an application for leading additional evidence was filed stating therein that a tubewell was got installed by the appellant during the pendency of the appeal spending Rs. 86,000/-, which deserved to be considered for the purpose of assessment of damages on account of severance as the quality of the left over portion of the land had diminished on account of acquisition of tubewell. Reliance was placed upon Collector, Bilaspur v. Smt. Janki Devi, AIR 1961 (HP) 42 and Smt. Savitri Devi v. State of Haryana through the Land Acquisition Collector, Panchkula, (1984) 86 PLR 47. On the other hand, learned counsel for the State submitted that the claim made by the appellant on both the counts is totally misconceived. Reliance on the estimate prepared by PW1-Som Nath Saini, produced on record as Ex. P1, is totally misplaced, as the admitted position on record is that the said valuer did not issue any notice to the State or any of the authority before carrying on the inspection of the spot for the purpose of preparing the estimate. How he was able to make out as to what was the depth of the tubewell and what material had been used, which was beneath the earth, is not borne out from the record. As against that, the estimate produced by RW1- Amar Chand Bansal was quite in detail and prepared as per the standard rates, which cannot be faulted with as the person, who prepared the estimate was not inimical to the appellant. He had prepared the estimate in discharge of his official duties to which no mala fides can be attached. As regards damages on account of severance is concerned, the submission was that under the provisions of the Act, the land owner is entitled to be compensated for the acquisition of land or the super structure standing thereon. It was a case of acquisition of big chunk of land in one block, which had not divided the land owned by the appellant into two parts, making it difficult for him to cultivate or approach the other portion of the land. Small portion of the land owned by the appellant was left on one side which had not become useless. The claim of the appellant stating that to irrigate 7 kanals and 7 marlas of land, he had installed a tubewell spending Rs. 80,000/-, whereas the value of the land at that time was close to that, cannot at all be believed. In fact with the acquisition of land for industrial purpose, the value of the left over portion of the land of the appellant had increased further and he was benefitted with the acquisition. Even otherwise, the claim for damages on account of severance could not be made in the present proceedings, where the award was merely for super structure and the tubewell. Heard learned counsel for the parties and perused the relevant RFA No. 1526 of 1987 [4] referred record. Regarding superstructures Considering the pleadings of the parties, the learned court below framed the following issues: “1. Whether the claimant was not allowed compensation for all the acquired structures and if so, to what extent? OPA 2. Whether the compensation awarded to the claimant is inadequate and if so, to what extent? OPA 3. Relief.” The onus on both the issues was on the appellant. The learned court below after considering the evidence produced by the parties on record did not find substance in the evidence led by the appellant and returned finding on both the issues against the appellant. Though in the petition filed under Section 18 of the Act, the appellant had claimed severance to the tune of Rs. 50,000/-, however, no specific issue was claimed or framed therefor. The issues were merely regarding the compensation awarded to the appellant being inadequate or not and further as to whether compensation for any acquired super structure remained un-assessed. Both the issues primarily relate to the valuation of the super structure acquired. A perusal of the estimate (Ex.P1) produced by the appellant shows that a number of items have been mentioned therein, the value of which has been assessed by PW1-Som Nath Saini. In his cross-examination, PW1-Som Nath Saini admitted that he had not called any person from the department which had acquired the land and the super structure and the same was prepared only on the instructions of the appellant. As against that, the State produced on record its own estimate (Ex. R1) prepared by RW1-Amar Chand Bansal, Sub Divisional Engineer, Sub Division No. 3, Public Health, Mohali, stating therein that he had visited the site on 7.3.1984 and assessed the value of the structure existing thereon at Rs. 13,931/-. The award of the Collector was based thereon. It was further stated that appellant-Harchal was present at the spot when he had visited the spot and the measurements were made in his presence. There is some discrepancy in items noticed by the valuer produced by the appellant, as compared to the one propduced by the State. Once the valuer, whose report is sought to be relied upon by the appellant, had not inspected the spot in the presence of any of the officers of the government, much credence cannot be led to his report. The valuation apparently is on account of certain more items having been added and the application of different rates. As against this, inspection by RW1-Amar Chand Bansal was made in the presence of the appellant. It is certified by RW1-Amar Chand Bansal that RFA No. 1526 of 1987 [5] the estimate prepared by him is as per the scheduled rates. Even premium had also been added thereon. The difference in the valuation, as assessed by the Collector and as produced by the appellant is Rs. 14,504.91. In such situation, this court is not an expert. It is an estimate produced by the appellant versus an estimate produced by the State. It is a matter of common knowledge that the estimates produced by the land owners are always on the higher side, whereas the estimates produced by the State are conservative. Considering such circumstances, this Court had earlier been applying a set principle of addition of 25% in the value of super structure, as assessed by the Collector, as a thumb rule. Reference can be made to R.F.A. No. 579 of 2006—Smt. Akko Devi and others v. Union Territory, Chandigarh and another, decided on 1.10.2008. The same principle is applied herein and the appellant is awarded 25% more on the value of the super structure, as has been assessed by the Collector. The appellant shall also be entitled to the statutory benefits available to him under the Act. Regarding claim of severance As far as claim regarding grant of damages on account of severance is concerned, I do not find any merit in the submissions made by learned counsel for the appellant. It is not disputed that the land in question was acquired by the State vide notification dated 4.2.1981 and there were certain super structures existing thereon. The award only for the value of the land was pronounced earlier, whereas separate award was announced for the super structure existing on the acquired land. The land owner did not feel satisfied with the award of the Collector with regard to the value of the land and filed objections, which were decided by the learned court below and even appeal to this Court has also been decided in R.F.A. No. 2853 of 1986. No claim with regard to severance was made therein. In the present case, the award of the learned court below was only pertaining to the value of super structure. The claim for damages on account of severance is sought to be made in the petition filed under Section 18 of the Act being dissatisfied with the aforesaid award. Severance is something which is related to the land. It is always claimed and granted in case the land owner is able to show that on account of acquisition of some portion of land owned by him, the value of rest of the land had diminished or the same had become useless or big chunk of land has been divided into two parts on account of acquisition for some canal, drain, Railway line etc. making it difficult for the land owner to approach one of the portions of the land. Meaning thereby the severance is something which is related with the value of land because the assessment thereof is also made on he RFA No. 1526 of 1987 [6] basis of value of the land as to how much the same has been reduced on account of acquisition. In the present case, the claim made by the appellant is sought to be made, though as damages on account of severance in the nature of cost of installation of tubewell to irrigate left out portion of land on account of acquisition of land along with tubewell existing thereon. Further, it is a case where the acquisition was for a big chunk of land in a block and not for a drain, canal, railway line etc., which could divide the land of the appellant into two parts. As the award, out of which the present proceedings emanated was only for super structure existing on the land, no claim for damages on account of severance of the land can possibly be made herein. All what could be claimed is as to whether the value of the super structure, as assessed by the Collector, was just and fair or not. The issues were also framed accordingly to which no objection was raised either before the court below or even before this Court. For the reasons mentioned above, the claim regarding damages on account of severance is dismissed. The appeal is disposed of in the above terms. (Rajesh Bindal) Judge February 19,2010 mk (Refer to Reporter)