HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No.: 217 of 1998 Reserved on: 20.7.2009. Decided on: 20.8.2009. Sardar Bahadur Sir Indra Singh (Personal Estate) Trust ………Appellant. Versus State of Himachal Pradesh and another ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Mr.Bhupender Gupta, Senior Advocate, with Ms.Charu Gupta, Advocate. For the respondents: Ms.Shubh Mahajan, Deputy Advocate General and Mr.J.S. Guleria, Assistant Advocate General. V.K. Ahuja, J: This is a regular first appeal filed by the appellant under Section 54 of the Land Acquisition Act, against the award made by the learned District Judge, Shimla vide order dated 18.2.1998, for modification of the award and to further enhance the compensation by a sum of Rs.4.00 lacs over and above the amount awarded by the learned District Judge. Briefly stated the facts of the case are that the Government of Himachal Pradesh issued a Notification dated 7.3.1974 under Section 4 of the Land _____________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - Acquisition Act for the acquisition of the property known as Mashobra View Estate, situated near Lakkar Bazar. The area of the Estate was 7459 square yard and 8 feet comprised in Khasra Nos.258/1, 258/2, 258/3, 258/4 and 258. The acquired property had 3-storeyed building having 15 bed rooms with attached toilets and number of servant quarters. The property belonged to the petitioner. After the Notification was issued, the land was acquired and the Land Acquisition Collector assessed the compensation for the acquired property. He assessed the compensation for the land at Rs.1,42,110.90, for the house and structures at Rs.78,222/- and for the trees at Rs.2957/-. A reference petition was filed by the petitioner, who claimed that the market value of the acquired land was not less than Rs.100/- per square yard as against Rs.19.05 per square yard, as assessed by the Land Acquisition Collector. It was also alleged that the value of the building and tennis court existing on the acquired property was not less than Rs.15,40,000/-. In regard to the trees, the value was alleged at Rs.20,000/-. The learned District Judge framed an issue and finally held that the rate of the acquired land was Rs.50/- per square yard and after deducting the amount of Rs.19.05 per square yard, as assessed by the Land Acquisition Collector, it was held that the petitioner was entitled to enhanced compensation at the rate of Rs.30.65 per square yard. The amount of enhanced compensation was assessed at Rs.2,28,640/-. - 3 - I may mention here that earlier the learned District Judge had affirmed the valuation done by the Land Acquisition Collector vide his award dated 12.10.1977. On appeal, the matter was remanded back and the learned District Judge, vide his award, dated 20.7.1986, held that the market value of the land was Rs.60/- per square yard and value of acquired building was Rs.2.00 lac. An appeal was preferred by the State and cross objections were also filed by the petitioner and the case was again remanded to the learned District Judge to decide the matter afresh after giving opportunity to the parties to prove the sale deed tendered in evidence. Thereafter, the impugned award was passed by the learned District Judge. The learned District Judge in the impugned award had observed that the case was remanded to the Court for examining the vendors and vendees since Exts.P-4 to P- 10 and P-12 cannot be used for determining the market value unless the vendors and vendees are examined. Thereafter, the petitioners examined two vendees, who purchased the land through sale deed Ext.P-10 and Ex.P-6. I may make a reference to these documents and other documents proved in evidence and the other sale deeds tendered in evidence. Coming to the first sale deed Ext.P-6, it was executed on 29.6.1977. According to this sale deed, the land measuring 290.6 square yard was sold for a consideration of Rs.29,000/-. PW-4 Shri Attar Singh has stated that he had purchased the land vide this sale deed. The price was fixed in good faith and was actually paid. - 4 - He stated that this land was purchased for raising a residential house thereon. However, he stated that this was not a very sunny site. The date of Notification issued in the present case is 7.3.1974 and it is clear that this sale deed was executed more than two years after the issuance of the Notification. Therefore, this sale deed cannot be the basis for determining the market value of the land at the time of issuance of the Notification under Section 4 of the Act. The second sale deed is Ext.P-10 proved in evidence of PW-3 Harbans Singh, vendee, who stated that he purchased 154 square yard and 4 square feet of land in Lakkar Bazar area for a sum of Rs.11,000/-. He stated that the sale consideration was actually paid and was fixed in good faith. In cross examination, he had stated that he had purchased the property for construction of a hotel building. The sale deed was executed on 30.3.1974 i.e. after about 23 days of the issuance of the Notification under Section 4 of the Act. It is not disputed that the acquired property in question was also situated near Lakkar Bazar as has also come up in the evidence of PW-2 Shri S.P. Kapoor. In view of the fact that this sale deed was executed in the same month, when the Notification was issued and the property was situated near Lakkar Bazar and the land sold vide Ext.P-10 was also in Lakkar Bazar, therefore, the sale deed Ext.P-10 can be used for determining the market value of the acquired land. Accordingly, it follows from a perusal of Ext.P-10 that the - 5 - market value in the sale deed Ext.P-10 was Rs.71/- per square yard. Whether the same should be followed and some deductions should be allowed or not shall be discussed below. Coming to the other sale deeds, this Court had remanded the case for examining the vendor or the vendee since, as per the law prevalent at that time, the sale deeds were required to be proved either by the vendor or the vendee and accordingly, the parties were permitted to lead evidence and the petitioner examined two of the vendees to prove the sale deeds Ext.P-6 and Ext.P-10. However, according to the latest law laid down by the Apex Court in Cement Corpn. Of India versus Purya and others, (2004) 8 Supreme Court Cases 270, certified copies of the sale deeds can be looked into even without examining the vendor or the vendee. A perusal of the said decision shows that the contents of the document produced should not be treated as a conclusive proof of the transaction contained therein or that the Court must raise a mandatory presumption in relations thereto. The presumption of genuineness of such a document is rebuttable. The court can rely on such presumption only if the same is not rebutted by other evidence. The observations were made in regard to a certified copy of the registered sale transaction proved in evidence, which permits the acceptance of such transaction without examination of the vendor or vendee. The word used is “may” and it permits the production of a certified copy of the registered sale - 6 - transaction in evidence but permits the acceptance of such transaction without examination of the vendor or vendee. However, by using the word “may” the provision confers a discretion on the Court in that regard, which has to be exercised judicially i.e. upon taking into consideration the relevant factors. In view of the above discussion, the sale deeds, certified copies of which have been placed on record, can be looked into. Ext.P-5 shows that the sale deed is dated 17.12.1977 and the Notification was issued more than 2-1/2 years prior to this sale deed and therefore, the same is not relevant. Sale deed Ext.P-7 is dated 18.9.1976 i.e. after more than 2-1/2 years of the issuance of the Notification and the land is situated in Ward Chhota Shimla, away from the acquired land and, therefore, keeping in view the period when this sale deed was executed, the same is not relevant. Ext.P-8 is the sale deed dated 3.4.1974, which shows that the land measuring 4 square yard and 4 square feet was sold for Rs.500/- and the land was situated in Ward Bara Shimla and there is nothing on the record to show as to the distance in between the acquired land and this land and neither the vendor or the vendee has been examined to prove the purpose of the sale or the fact that the sale consideration was actually paid and fixed in good faith and also keeping in view the fact that the sale was of a small piece of land, the same cannot be said to be relevant. Coming to the sale deed Ext.P-9, dated 30.3.1974, the land was situated in - 7 - Station Ward Shimla and, therefore, the same cannot be said to be relevant. Ext.P-12 is the copy of the sale deed dated 22.1.1970 and the land was situated in Kasumpti Junga Tehsil, Shimla. The land was sold for Rs.2,000/- measuring one biswa only. Keeping in view the fact that the sale deed was effected about 4 years ago prior to the issuance of the Notification and it was a small piece of land, the sale deed is also not relevant for determining the market value of the land. It follows from the above discussion that the relevant document for consideration and determination of the market value at the time of acquisition of the land can be said to be Ext.P-10 since the lands were situated in the same area. The learned trial Court had observed that according to Ext.P-10, the market value of the small plot of the land in the locality was Rs.71/- per square yard while acquired property is a big chunk of land measuring 7459.8 square yard. It may not be disputed that the plots of small size fetch a fancy price as compared to the land sold vide a big chunk and accordingly the learned trial Court had deducted 30% from the value as compared to Ext.P- 10 observing that some land would be required to be used for making passages and constructing drains etc. The submissions made by the learned counsel for the appellant were that their already existed drains etc. in the land acquired and, therefore, no deduction should have been allowed to be made, as has been done by the learned trial Court. I am not convinced of the - 8 - submissions since even though their existed drains, passages etc. which will not have to be made again, but in case the land was sold by the vendor making it small plots, he would not have been able to sell the land over which passages, drains etc. existed. In case this exists already, it certainly is a ground to deduct its value from the total land sold and the deduction made by the learned trial Court of 30% in this regard cannot be said to be incorrect as the land was to be sold in small plots after deduction of the area over which passages, drains etc. existed. Accordingly, the learned trial Court had come to the conclusion that since the land sold vide sale deed Ext.P.10 was of the market value of Rs.71/- per square yard, therefore, he came to the conclusion that the market value of the acquired land was Rs.50/- per square yard. No other document worth consideration was referred to by the learned counsel for the appellant to show that the value deserves to be more. In view of the above discussion, it is clear that though the market value was determined at the rate of Rs.19.05 per square yard by the Land Acquisition Collector, the learned trial Court, on the basis of the evidence, had enhanced it to Rs.50/- per square yard and there is no other material on record to show that it deserves to be enhanced further and as such the valuation of the land, as made by the learned trial Court, calls for no interference by this Court. - 9 - No arguments were advanced in regard to the value of the trees or that these were assessed wrongly, which also calls for no interference by this Court. To my mind, the only dispute appears to be in regard to the value of the building standing over the acquired property. The learned trial Court observed that the Land Acquisition Collector had awarded a sum of Rs.78,222/- on account of the value of the building and other structures. The learned trial Court had also relied upon the decisions of the Apex Court in Ratan Kumar Tandon and others versus State of U.P., (1997) 2 Supreme Court Cases 161, wherein the value of the site under a building was assessed separately. It was held that the value of the building cannot again be assessed and no compensation for the building can be awarded except its debris value. The learned trial Court, therefore, observed that the amount can legitimately be presumed to be more than the value of the debris of the building and other structures. It appears that the learned trial Court had not assessed the value of the building standing at the site but had assessed the value of the debris only keeping in view the decision of the Apex Court. My attention has been drawn to the latest decision of the Apex Court in Abdul Kuddus Mandal and others versus State of Assam and another, (1999) 6 Supreme Court Cases 589, which decision is by three Hon’ble Judges of the Apex Court as compared to the decision in Ratan Kumar Tandon’s case (supra), which decision was by - 10 - two Hon’ble Judge of the Apex Court. It was clearly observed in para 8 as under: “8. It appears to us that the High Court fell in a basic error in not awarding compensation for the houses on the ground that since land had been acquired, it is only compensation for removal of houses standing thereon, which could have been granted because houses had not been acquired. That is not a correct approach. The compensation was required to be paid for the houses which were standing on that land. The land could not have been acquired without the houses standing thereon. The Reference Court had rightly awarded compensation for the houses. The order of the High Court on this account suffers from apparent error……………………” It is, therefore, clear from a perusal of the above decision that the valuation has to be made for the houses standing on the land and not only for the value of the debris of the houses standing thereon. To prove the value of the building, the petitioner had led some evidence. PW-1 Iqbal Singh Gill, who appeared on behalf of the petitioner, has stated that there was a three storeyed building having 15 bed rooms with attached bath rooms and equal number of servant quarters and two drawing rooms, kitchen pantry and huge tennis court. He further stated that the owner Sardar Baldev Singh, first Defence Minister of India, was using it for residential purpose and he use to stay here when he came on official business. He further stated that the maintenance of the entire property was excellent. The entire wood work was of Burma teak. The window panes were tainted glasses and all of them were - 11 - imported glasses from Belgium. He also stated that the sanitary fittings and other fittings in the bath rooms were all imported. There were no specific suggestions to this witness that the building was in dilapidated shape or was not in a condition to be used as a residence. The only suggestions made were that the market value of the acquired building was Rs.78,000/- and it was not well maintained, which suggestions were denied by this witness. PW-2 Shri S.P. Kapoor, Superintending Engineer, has stated that he was working as a Consulting Engineer after retirement. He went to the spot, inspected the building and took detailed measurements. He also stated about the buildings, servant quarters etc. and he prepared report Ext.PW-2/A. A perusal of the report Ext.PW-2/A prepared by him in regard to the valuation of the building shows that he assessed the cost at Rs.2,60,611/- and after addition the head load carriage, services, including site development etc., he came to the conclusion that the total value comes to Rs.7,17,300/- only. He added compulsory acquisition charges at the rate of 15%. In regard to the main building, he had assessed its value at Rs.8,24,895/-. The depreciated cost of the main building was given as Rs.1,81,382/-. He also added the value of servant quarters, kitchen blocks etc. To rebut the above evidence, the respondents had examined RW Shri Saput, who stated that he is presently posted as Executive Engineer and he had made the valuation of the building acquired for the Medical College. He - 12 - assessed the value of the buildings, structures etc. amounting to Rs.73,222/- and he proved his report Ext.RW- 6/B. He assessed the value of the main building at Rs.1,02,377/-, servant quarters at Rs.52,357, kitchen at Rs.11,278/-, godown at Rs.2,331/-, rickshaw shed at Rs.1,760/-, tennis court at Rs.57,434/- and finally came to the conclusion that after deduction, the value was Rs.78,222/-, which was granted by the learned trial Court. A perusal of the note given by him shows that at one place, he had observed in regard to the main building that it can live 14 years more, if maintained properly, while in regard to the another part of the building, it was observed that it could live for 40 years, 25 years or 28 years keeping in view the condition of the building and if maintained properly. Thus, it is clear that in assessing the value of the building, the expert examined by the respondents had observed that the condition of the building was good and it can live for a longer period ranging from 14 to 40 years depending upon the particular part of the building whether it was the main building, or kitchen or tennis court etc. A perusal of his cross examination shows that his assessment pertains to the structures only. Once it has been mentioned above that the value was to be assessed for the building standing at the acquired land and not for structures, the valuation given by the respondents’ engineer for structures only cannot be said to be correct and I am of the opinion that even according to this witness, the value of the main building and the structures - 13 - comes to over Rs.2.00 lacs, as detailed above. The valuation given by PW-2 S.P. Kapoor appears to be on higher side and it follows from this discussion that the valuation given in Ext.PW-2/A cannot be said to be correct and the valuation given by the witness examined by the respondents also cannot be said to be correct since I have held above that the value of the building was over Rs.2.00 lacs. The valuation of the main building was assessed at Rs.2,60,611, as discussed above. The valuation given for servant quarters and building cost etc. appears to be on the higher side and, therefore, the total valuation assessed at Rs.7,17,300/- cannot be said to be correct. I may also consider the spot inspection conducted by the learned trial Court which is at page 45, though the date of inspection is not mentioned on the report. However, a perusal of the record shows that the spot was inspected by the Court on 28.6.1986. The observations made show that the wood and glasses were observed to be of good quality. The ceiling was also not in a bad shape but it appeared to be quite old. It was observed that the building appeared to be more than 50 years old and there was paneling also and the danga was in good condition. Keeping in view of these facts, I am of the opinion that the value of the main building assessed by the expert examined by the petitioner at Rs.2,38,000/- or say Rs.2,40,000/-, can be said to be correct after considering the report of the Junior Engineer examined by - 14 - the respondent also. Therefore, I am of the opinion that the value of the building can be said to be Rs.2,40,000/- in all and the petitioner is entitled to this amount as against Rs.78,222/- granted by the Land Acquisition Collector and affirmed by the learned trial Court. There is nothing on the record to show that the petitioner was not granted compulsory acquisition charges, interest etc. in accordance with the provisions of the Act and, therefore, the petitioner is not entitled to anything extra. However, he shall be entitled to interest on the amount so assessed by this Court and accordingly the appeal filed by the appellant is allowed partly as detailed above. The compensation shall be assessed by the Land Acquisition Collector within 3 months and shall be payable to the petitioner accordingly. However, it is clarified that the petitioner shall be entitled to interest etc. not from the date of taking over of the possession i.e. 25.8.1968, as held by the learned trial Court, but from the date of issuance of notification under Section 4 of the Act, as per the law laid down by the Apex Court in Siddappa Vasappa Kuri and another versus Special Land Acquisition Officer and another, (2002) 1 Supreme Court Cases 142. The appeal is partly allowed accordingly. However, the parties are left to bear their own costs. August 20, 2009. (V.K. Ahuja), (TILAK) Judge.