RFA No. 2166 of 1994 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RFA No. 2166 of 1994 Date of Decision: 8.9.2009 State of Haryana ....Appellant. Versus M/s Kishore Chand and Company ...Respondent. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Ashish Sharma, DAG, Haryana, for the appellant. Mr. Sudhir Mittal, Advocate for the respondent. AJAY KUMAR MITTAL, J. This order shall dispose of two cross-appeals bearing RFA Nos. 2166 and 2137 of 1994 as both of them have arisen out of the award dated 8.4.1994 passed by the Additional District Judge, Ambala, in LA Case No. 26 of 1994. The State has filed the appeal for reduction of the amount of compensation whereas the appeal filed by the claimant is for enhancement of the compensation in respect of super-structure and loss of business awarded by the reference court. Briefly stated, the facts of the case are that the State vide notification dated 31.8.1987 issued under Section 4 of the Land Acquisition Act, 1894 (in short “the Act”) acquired the land belonging to the claimant situated in village Devi Nagar, Tehsil Kalka, District Ambala, for public purpose, i.e. development and utilization for RFA No. 2166 of 1994 -2- recreational and commercial for Sector-3, Urban Estate, Panchkula. This was followed by declaration dated 26.7.1988 issued under Section 6 of the Act. The Land Acquisition Collector vide award dated 27.3.1989 awarded compensation for the land as well as the super- structure and also for loss of business and shifting charges. The claimant sought reference against the award passed by the Land Acquisition Collector claiming compensation to the tune of Rs.15,00,000/- for the building structures. The State filed written statement pleading that the Land Acquisition Collector had rightly awarded the compensation. The reference court, on the pleadings of the parties, framed the following issues:- “1. What was the market value of the acquired land at the time of acquisition? OPP 2. What was the market value of the super structure? OPP 3. What was the market value of the trees, existing if any? OPP 4. Whether the claimants are entitled to any compensation on account of loss of business?OPP 5. Whether the claimants are entitled to compensation on account of shifting charges?OPP 6. To what amount claimants are entitled towards enhanced compensation? OPP RFA No. 2166 of 1994 -3- 7. Relief.” Issues No.1 and 3 were held to be redundant as in the reference, the claimant had not sought enhancement of the amount of compensation for the acquired land and the trees standing thereon. To prove issue No.2, the claimant examined Shri H.L. Dhammi, Superintending Engineer (Retired) PWD (B&R) Haryana as PW1 who stated that he had inspected the premises of the claimant and prepared plan of the existing structure, Ex.P2, and submitted his report, Ex.P1, based on prevalent PWD schedule rates regarding the said structure. On the other hand, the State had examined Shri O.P. Sardana, Sub Divisional Engineer, HUDA as RW1 who deposed that he had inspected the site in dispute and prepared the valuation report of the existing structure, Ex.R1. The reference court relying on the report, Ex.R1, determined the value of the super-structure at Rs.11,248/- and awarded the same to the landowner-claimant. Under issue No.4, the reference court awarded a sum of Rs.10,000/- to the claimant on account of loss of income due to shifting of business from the acquired land. Besides the aforesaid, the claimant was also held entitled to statutory benefits available under Section 23 (1-A) and solatium at the rate of 30% under Section 23 (2) of the Act. However, the interest was not awarded to the claimant as it was still in possession of the premises and carrying on its business there. Feeling aggrieved, by way of instant appeals, the claimant as well as the State have challenged the award passed by the reference court, as noticed above. I have heard the learned counsel for the parties and have RFA No. 2166 of 1994 -4- perused the record with their assistance. Learned counsel for the landowner submitted that it had produced the assessment report, Ex.P1, prepared by Shri H.L.Dhammi, Superintending Engineer (Retired) whereas the State had got the value of the super-structure assessed from Shri O.P. Sardana, RW1, Sub Divisional Engineer, HUDA, who had proved the report, Ex.R1 regarding value of the existing structures. According to him, report Ex.R1 had been accepted whereas the report submitted by Sh. H.L. Dhammi had been ignored by the reference court. The learned counsel submitted that the question of grant of compensation for super-structure arising from same notifications and acquisition in the case of land owners similarly situated as in the present case, where identical report of the expert Shri H.L. Dhammi had been ignored and instead the report of the official expert of HUDA had been accepted by the reference court was considered by this Court in RFA No. 1797 of 1994 titled as “Ved Parkash & Co. v. State of Haryana” decided on 26.5.2009, wherein the amount of compensation was enhanced from Rs.18,446/- to Rs.27,500/- by giving an increase of almost 50% over and above the amount granted by the reference court. The learned counsel for the claimant referred to the following observations of this Court in the aforementioned judgment:- “It is correct that respondent's expert Preet Mohan Singh (RW-1) had no personal interest. However, his assessment, being an official of HUDA for which the land was acquired, would tend to under estimate the value in the same manner as the report of appellant's RFA No. 2166 of 1994 -5- expert would tend to over estimate the value. Consequently, the report of respondent's expert could not be followed blindly nor the report of appellant's expert could be ignored altogether. In these circumstances, some guess work has to be applied. The appellant's expert has not given detailed calculation of the market value and has applied flat rate of 55 per sq. feet for covered area of office and flat rate of Rs.35/- per sq. ft. and Rs.27/- per sq. feet for labour huts and Rs.50/- per feet for brick-wall. On the other hand, respondent's expert has given detailed calculation for all the materials used in the structures. Consequently, the report of respondent's expert is more reliable, but some more amount has to be enhanced on account of tendency to under-value the structures. Accordingly, I determine the compensation for the existing structures of the appellant at Rs.27,500/-.” Learned counsel for the landowner claimed that on the basis of parity, an increase of 50% over and above the compensation awarded by the reference court may be allowed to the claimant herein also, in terms of the decision of this Court in Ved Parkash & Co.'s case (supra). Learned counsel for the claimant, however, did not raise any argument with regard to the enhancement of the claim on account of loss of business. Accordingly, the same is declined. RFA No. 2166 of 1994 -6- Learned State counsel has not been able to controvert the submission of the learned counsel for the landowner. This Court in Ved Parkash & Co's case (supra) while adjudicating the identical issue, as has been projected here, has observed that as the report of expert of HUDA would tend to under estimate the value being an official of HUDA, at the same time, the report of landowner's expert would tend to over estimate the value. The report of State's expert could not be followed blindly and the report of the landowner expert could not be ignored altogether and accordingly modified the award of the reference court regarding value of the super- structure by giving an increase of 50% over and above the quantum awarded by the reference court. The said observations fully apply to the facts of the present case as well. In view of the above, the award dated 8.4.1994 passed by the reference court is modified to the extent that the claimant shall be entitled to a sum of Rs.16,872/- which is rounded off to Rs.17,000/- (Rs.11,248/- awarded as compensation by the reference court plus Rs.5624/- as 50% increase by this Court) for the existing structures. Besides this, the claimant shall also be entitled to the benefits available under Sections 23 (1-A) and 23 (2) of the Act as awarded by the reference court. Resultantly, the appeal filed by the State is dismissed whereas that of the claimant stands partly allowed in the manner, indicated above. September 8, 2009 (AJAY KUMAR MITTAL) gbs JUDGE RFA No. 2166 of 1994 -7- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RFA No. 2137 of 1994 Date of Decision: 8.9.2009 M/s Kishore Chand and Company ....Appellant. Versus State of Haryana ...Respondent. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Sudhir Mittal, Advocate for the appellant. Mr. Ashish Sharma, DAG, Haryana, for the respondent. AJAY KUMAR MITTAL, J. The present appeal is partly allowed. For reasons, see separate judgment of even date recorded in RFA No. 2166 of 1994 (State of Haryana v. M/s Kishore Chand and Company). September 8, 2009 (AJAY KUMAR MITTAL) gbs JUDGE