IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 134 of 2001. Judgement reserved on: 27.6.2008. Date of decision: July 3, 2008. Nathpa Jhakri Power Corporation & anr. ….. Appellants. Versus Devi Ram & anr. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Ramakant Sharma, Advocate. For the Respondents : Mr. Vinay Kuthiala, Advocate, for respondent No.1. Mr. A.K. Bansal, Addl. Advocate General, for respondent No.2. Kuldip Singh, Judge. The Nathpa Jhakri Power Corporation, for short Corporation, for whose benefit the land was acquired has come in appeal against the award dated 21.10.2000 passed by learned District Judge, Kinnaur Civil Division at Rampur Bushahr in Land Reference Petition No. 142 of 1995/92 awarding Rs.21,500/- for acquisition of land measuring 0-01-57 Hectare and Rs.2,38,873/- for acquisition of house of respondent No.1. The respondent No. 1 has also been awarded solatium at the rate of 30% on the enhanced amount of compensation, additional compensation under Section 23 Whether the reporters of the local papers may be allowed to see the Judgment? …2… (1-A) at the rate of 12% per annum for the period 18.6.1988 to 27.2.1991, interest at the rate of 9% per annum for one year w.e.f. 27.2.1991 and thereafter at the rate of 15% per annum till the enhanced amount was deposited or paid. 2. The facts in brief are that department of M.P.P. and Power, Government of Himachal Pradesh vide notification under Section 4 of the Land Acquisition Act, 1894 (for short, the Act), which was published in the gazette on 18.6.1988 acquired land and house of respondent No.1 comprised in khasra No. 828, 820/1, 820/1/2, total measuring 0-03-17 Hectare situate in Revenue Estate, Jhakri. The acquisition was made for construction of residential accommodation for the staff of appellant No.1. The Collector, Land Acquisition (for short, the Collector) announced the award on 27.2.1991 and determined the market value of the acquired land as per classification given below:- 1. Kiar Awal Rs.56,278/- per bigha. 2. Bakhal Awal Rs.26,500/- -do- 3. Bakhal Doem Rs.23,500/- -do- 4. Uncultivated land Rs.20,000/- -do- 3. The respondent No. 1 was not satisfied with the amount of compensation awarded to him. He filed reference petition under Section 18 of the Act for determination of market value of his property. The learned District Judge has enhanced the market value of the land from Rs.10,784/- to Rs.21,250/- and of the house from Rs.1,94,857/- to Rs.2,38,873/- alongwith solatium on the enhanced …3… amount of compensation, additional compensation and interest as noticed above. 4. I have heard Mr. Ramakant Sharma, learned counsel for the appellant and Mr. Vinay Kuthiala, learned counsel for respondent No.1 and gone through the record. Mr. Ramakant Sharma, appearing on behalf of the appellants at the very outset has submitted that the corporation in many cases has settled and accepted the compensation at the rate of Rs.1,00,000/- per bigha of land acquired in village Jhakri, therefore, on the instructions of appellants, Mr. Ramakant Sharma, learned counsel for the appellants has not pressed the appeal so far enhancement of compensation of land is made by the learned District Judge in the present case. Mr. Ramakant Sharma, however, has submitted that learned District Judge has erred in enhancing the compensation with respect to house property of respondent No.1. He has submitted that the Collector had awarded just and equitable compensation to respondent No.1, and, therefore, respondent No. 1 is not entitled to enhancement of compensation for the house property The learned counsel for respondent No. 1 has supported the impugned award and has submitted that learned District Judge after due appreciation of material on record has rightly assessed the market value of the house property of respondent No. 1. In view of the stand taken by Mr. Ramakant Sharma, learned counsel for the appellants, the dispute between the parties is left in very narrow compass. The only point left for determination is the market value of house property of respondent No.1. …4… 5. PW 1 Devi Ram has stated that he had constructed house on 7½ biswas of land out of 8½ biswas total land owned by him comprised in khasra Nos. 828, 820/1 and 820/1/2. He has stated that construction was started in the year 1985-86 and was completed in the year 1987-88. The house was of bricks and stones and deodar wood was used. There was verandah in the house and roof of G.G.I. sheets and house consisted of nine rooms, kitchen and bath room. He had rented out the house to tenants, namely Des Bandhu, Hari Singh, Nizam Khan and Neena Sharma. He used to earn Rs.2000/- per month as rent. 6. PW 2 Lalit Kumar, Graduate Junior Engineer, PWD has stated that in March 1991 he had inspected the house of Devi Ram, took measurements and made valuation of the house at Rs.2,78,000/- as per H.P. Schedule of Rates of 1987, he took measurements of the house Ex. PW 2/A, abstract of cost Ex.PW 2/B and drawing Ex.PW 2/C. RW 1 K.K. Gupta has stated that he had done diploma in Civil Engineering from Rurki University in the year 1959. He served various organizations. He had inspected the building in question and assessed its market value and prepared estimate Ex.RW 1/A, drawing Ex. RW 1/B. According to him, the market value of the structure in question was Rs.1,94,857/-. After deducting 5% of the cost as assessed by him, the material of the structure in question was given to respondent No.1 and he took away the material of the structure. In cross examination, he has stated that he had applied 1987 HPPWD schedule of rates for working out the market value of …5… the structure. He carried out the inspection in 1989 on different dates. 7. Ex. PW 2/A is the abstract of cost prepared by PW 2 Lalit Kumar. As per abstract Ex. PW 2/A the cost of the house of Devi Ram was determined at Rs.1,44,293/-. On this amount, respondent has added the following amounts:- Cost Rs.1,44,293.00 Add 10% for site dev elopement Rs. 14,429.00 charges. _____________ Rs.1,58,722.00 Add 5% for unforeseen items Rs. 7,936.00 _____________ Rs.1,66,658.00 Add 120% due to increase Rs. 11,932.00 in brick rates and labour _____________ Rs.1,78,590.00 Add 45% for remaining Rs. 70,521.00 items due to increase in labour and material _____________ Rs.2,49,111.00 Add 12½% for W.S. & S.I. Rs. 18,036.00 _____________ Rs.2,67,147.00 Add 7½% for electrical Rs. 10,822.00 installations. _____________ Rs.2,77,969.00 Say Rs.2,78,000.00 only 8. The notification, under Section 4 of the Act was published in the gazette on 18.6.1988, therefore, relevant date of determination of the market value of the house of respondent No.1 is 18.6.1988. PW 2 has stated that he inspected the house of respondent No. 1 in March 1991 but he prepared the cost amounting to Rs.2,78,000/- on the basis of H.P. Schedule of rates of 1987. This part of the statement of PW 2 is apparently wrong. PW 2 in the …6… abstract of cost has added 120% due to increase in brick rates and labour, 45% for remaining items due to increase in labour and material. PW 2 in his statement or in the abstract of cost Ex. PW 2/A has nowhere stated that this increase was up to the year 1988. Therefore, it can be safely inferred that increase given by PW 2 in the abstract of cost due to increase in brick rates and labour and for remaining items due to increase in labour and material are up to March 1991 when he inspected the building. The notification under Section 4 of the Act was published on 18.6.1988, therefore, market value of the house property is to be determined on the date of notification under Section 4 and not in the year 1991 as assessed by PW 2. Therefore, the market value of the house property of respondent No.1 cannot be determined on the basis of abstract of cost Ex. PW 2/A. 9. RW 1 has proved on record abstract of cost Ex. RW 1/A. This witness has stated that he carried out the inspection in the year 1989. He has also stated that he did not allow premium on 1987 rates and he prepared the estimated cost keeping in view 1987 rate of H.P.P.W.D. In Ex. RW 1/A initially RW 1 has given abstract cost Rs.2,16,508.20 of the building and out of this amount he has deducted Rs.21650.82 on account of material used under specification. RW 1 has not prepared the details of measurement as well as details of cost of building, therefore, he has erred in deducting Rs.21,650.82 from the abstract cost Rs.2,16,508.20 of the building. In case Rs.21,650.82 are not excluded as mentioned in the abstract cost Ex. RW 1/A, then abstract cost of building of respondent No.1 as per Ex. RW 1/A remains Rs.2,16,508.20 or say …7… Rs.2,16,508/-. RW 1 in Ex. RW 1/A for site development has excluded the cost of retaining walls and breast walls. The retaining walls and breast walls are the main items for site development in hill area. The learned District Judge has allowed Rs.14429/- for site development and Rs.7936/- for unforeseen items for determining the market value of the house property of respondent No.1. The amount of Rs.14429/- and Rs.7936/- have been taken by the learned District Judge from the abstract of cost of the house of respondent No.1 prepared by PW 2. I am of the opinion that these two amounts still can be relied from the abstract of cost Ex. PW 2/A even though the market value of the house property of respondent No. 1 cannot be determined on the basis of abstract of cost Ex. PW 2/A. The abstract of cost Ex. PW 2/A has not been relied for the reasons that in Ex. PW 2/A, 120% increase in brick rates and labour and 45% for remaining items due to increase in labour and material have been added. So far as the cost of development charges of Rs.14429/- and cost of unforeseen items amounting to Rs.7936/- in Ex. PW 2/A are concerned, these can be relied because these items are independent of aforesaid 120% and 45% increases. The learned District Judge has thus determined the market value of the house property of respondent No. 1 at Rs.2,16,508/- + Rs.14429/- + Rs.7936/-, total amounting to Rs.2,38,873/-. The market value sometimes is to be determined on the basis of conjectures and guess work keeping in view the facts proved on record. Therefore, the market value of Rs.2,38,873/- of the house property of respondent No. 1 determined by the learned District Judge is just and equitable. …8… The respondent No.1 has not been given separate compensation for the land under the house. 10. The learned District Judge has rightly appreciated the material on record while determining the market value of the house property of respondent No.1. The learned counsel for the appellants has not pressed the appeal as regards the enhancement of the compensation of the land. The learned District Judge has enhanced the compensation of house property from Rs.1,94,857/- to Rs.2,38,873/- besides solatium, additional compensation and interest. The basic increase is only of Rs.44,016/- (238873 – 194857), which is otherwise not large amount keeping in view that house of respondent No. 1 was acquired. 11. No other point was urged. 12. The result of the above discussion the appeal fails and the same is accordingly dismissed. July 3, 2008 ( Kuldip Singh ) (Hem) Judge.