IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 98 of 2005. 1. State of Uttaranchal through Secretary, Revenue Department, Uttaranchal Shasan, Dehradun. 2. Collector, New Tehri. 3. Tehri Hydro Development Corporation through its Chief Managing Director, Head Office Bhagirathi Purum, Tehri, District Tehri Garhwal. … Appellants. Vs. Sushma Devi D/O Pitambar Dutt, Village Viryani, Tehsil-Tehri, District Tehri Garhwal. …Respondent. Mr. Sudhir Kumar, Brief Holder for the State-appellants. Mr. Lokendra Dobhal, Advocate, for the respondent. Date April 02, 2010. Hon’ble B.S.Verma, J. Heard learned counsel for the parties and perused the record. This appeal under Section 54 of the Land Acquisition Act 1894 (for short the Act) is directed against the judgment and decree dated 16-12-2002 passed by the Additional District Judge Tehri Garhwal lat New Tehri in Land Acquisition Reference No. 39 of 2002, Sushma Devi Vs. State of Uttaranchal, whereby the Reference Court has awarded a sum of Rs. 60,310/- in addition to the compensation awarded by the Special Land Acquisition Officer along with solatium of Rs. 25,430/- and additional compensation and interest as mentioned in the impugned order. A perusal of the record reveals that the District Magistrate Tehri Garhwal acquired the house of the respondent situate in village Chham Biryani, district Tehri Garhwal for Tehri Dam Project and notification under Section 4 of the Act was published in official Gazette on 1-8-1992 and after completing all other formalities, the 2 Special Land Acquisition Officer assessed the value of the house at Rs. 1,27,900/- and after deducting the depreciation cost of Rs. 19,100/- treating the house ten years’ old the compensation of Rs. 1,08,800/- was assessed. Aggrieved by the award passed by the Special Land Acquisition Officer, a reference bearing L.A. Reference No. 39 of 2002 was made to the reference court. The reference court framed two issues in the case and after recording the evidence of the parties, passed the judgment and decree dated 16-12-2003, which is impugned in this appeal. The main ground of challenge raised in the appeal is that the learned reference Court without any basis, wrongly calculated the enhanced value of the house in question. The respondent in support of her claim, to prove the market value of the house has filed valuation report (paper no. 24-C) and also examined P.W. 1 Pitambar Dutt Nautiyal, P.W. 2 K.C.Kudiyal, the Architect, who prepared the valuation report etc. of the house in question, and P.W. 3 Mastram Petwal. P.W. 3 has stated in his statement that the house in question was constructed in the year 1991. There is no dispute of the area of the house. The only dispute, according to the respondent, is that the valuation of the foundation was wrongly calculated. The width of the foundation was more while, according to valuation report of the appellants, it was lesser. The appellant-State has also filed valuation report paper no. 38- C and also examined D.W. 1 Gabar Singh Chauhan to prove the report. Learned counsel appearing for the appellants, during the course of arguments, has submitted that the valuation report filed by the appellants be treated as correct. He further submitted that in case 3 the deduction towards depreciation of value would be made @ 15%, as has been made by the reference Court, fair market value of the property would be worked out. According to the State counsel, the valuation of the property was assessed at Rs. 2,17,153/- by the valuer of the respondent and depreciation was made of Rs. 27,585/- by the reference court which comes approximately 13% and the Reference Court in its own wisdom has assessed the value of the house as Rs. 1,87,900/- and depreciation was made @ 10% i.e. Rs. 18,700/-, the amount of compensation was assessed at Rs. 1,69,110/-. Learned counsel for the appellants-State contended that if the deduction towards depreciation is made @ 15%, the value of the house comes to Rs. 1,59,705/-. Apart from above, the reference court has awarded Rs. 10,000/- against commercial loss. Since the house was residential, the respondent would not be entitled to this amount i.e. commercial loss. On the other hand, Mr. Lokendra Dobhal, Advocate, appearing on behalf of the respondent while supporting the impugned judgment and decree contended that the compensation worked out by the reference court is just and fair and the impugned decree does not call for any interference by this Court in appeal. I have perused the impugned judgment and the evidence led by both the parties before the reference court. The respondent has not challenged that the valuation of the house assessed by the reference court i.e. Rs. 1,87,900/- is not correct. I therefore hold that the valuation of the house without deducting the depreciation cost as assessed by the reference court is fair. In the above facts and circumstances of the case, I am of the view that the depreciation would be 15% instead of 10%, as made by the reference Court. After deducting the depreciation @ 15% from the value of the house (Rs. 1,87,900/-) i.e. Rs. 28,185/- the net value of 4 the house comes to Rs. 1,59,715/-. The house of the respondent had not been used for commercial purpose, therefore, there is no question of loss on this score. The reference court has wrongly awarded compensation of Rs. 10,000/- towards commercial loss. Thus, the respondent-claimant is entitled for additional compensation of Rs. 50,915/- (Rs. Fifty thousand nine hundred fifteen) in addition to Rs. 1,08,800/-. In addition to it, the claimant-respondent is entitled to solatium @ 30% and 12% additional compensation as well as interest @ Rs. 9% for the first year and @ 15% thereafter as provided under Proviso appended to Section 28 of the Act. The appeal deserves to the partly allowed. The impugned judgment and decree passed by the reference court is liable to be modified accordingly. The appeal is partly allowed. The impugned judgment and decree passed by the reference court is modified. The claimant- respondent shall get additional compensation of Rs. 50,915/- in addition to Rs. 1,08,800/-, as already awarded by the Special Land Acquisition Officer. In addition to it, the claimant-respondent is entitled to solatium on the enhanced amount @ 30% and 12% additional compensation as well as interest @ Rs. 9% for the first year and @ 15% thereafter as provided under Proviso appended to Section 28 of the Act. No order as to costs. (B.S.Verma,J.) RCP 5