IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No.200 of 1998 Judgement reserved on: 26.11.2007 Date of decision: 10.1.2008. Himachal Auto Stores Dhalli, & Ors. …….Appellants Vs. State of H.P. & Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellants : Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate. For the Respondents : Mr. M.L. Chauhan, Additional Advocate General. Kuldip Singh, Judge. This appeal has been directed against the award dated 1.4.1998 passed by learned Disitrict Judge, Shimla in L. Ref. No.39- S/4 of 1994 dismissing reference of the appellants for enhancement of the compensation. 2. The facts in brief are that Secretary (Agriculture) to the Govt. of Himachal Pradesh for acquiring the land comprised in khasra No.79, measuring 4 bighas 4 biswas, situated in village Badhai (Dhalli), Tehsil and District Shimla, for public purpose for establishment of regulated market at Dhalli issued notification under Section 4 of the Land Acquisition Act 1894 ( for short ‘Act’) which was Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… published in Rajpatra on 4.12.1982. The Land Acquisition Collector ( for short Collector) on 9.10.1985 made an award of Rs.7,17,277/- . It appears M/s. Himachal Auto Stores Dhalli vide application dated 24.1.1986 represented that they had been running business in the building known as Rai Bhadur Jodha Mull building, Dhalli since long as tenant in accommodation consisting of four godowns and shops. They were inducted tenant in the year 1950 by the then owner Khushi Ram and his son Rewal Chand. M/s Himachal Auto store, Dhalli after 1970 started a partnership business with partners Smt. Sarswati Devi, Rewal Chand, Hari Om, Naresh Kumar. The appellants-claimants claimed compensation under various head as follows:- (i) A sum of Rs.20 lacs on account of running loss of business. (ii) A sum of Rs. 2 lacs on account of goodwill of business concerned. (iii) Rs. 2 lacs on account of disturbance of business because they shall not be able to re-establish their business for at least two years. (iv) Rs.5 lacs as loss of business. (v). A sum of Rs.60,000/- on account of fixtures. 3. The Collector vide award dated 30.1.1987/15.2.1987 awarded a sum of Rs.54,520/- to the appellants-claimants. The appellants were not satisfied with the amount awarded by the Collector, therefore, they preferred reference under Section 18 of the Act against the award dated 30.1.1987/15.2.1987. In the reference petition they reiterated the claim made before the Collector. …3… However, interest and solatium were additionally claimed in the reference petition. The respondents contested the claim by filing the reply. On the pleadings of the parties the learned District Judge framed the following issues:- 1. Whether the Land Acquisition Collector has in- adequately assessed the value of the acquired property, if so its effect?...OPP 2. If issue No,.1 is proved in the affirmative to what enhanced amount the petitioner is entitled to? …OPP 3. Relief. The learned District Judge answered the reference and held that compensation awarded by the Collector is adequate and dismissed the reference petition, hence this appeal. 4. I have heard Mr. G.D. Verma, Senior Advocate for the appellants and Mr. M.L. Chauhan, Addl. Advocate General for the respondents and gone through the record. Mr. Verma has submitted that learned District Judge has erred in dismissing the reference petition. The material on record has not been properly appreciated. The appellants-claimants are entitled to compensation as preferred in the reference petition. The amount awarded by the Collector and approved by learned District Judge is grossly inadequate. The appellants were running their business in the premises since long and due to acquisition they suffered loss and therefore they are entitled to compensation. The learned Addl. Advocate General has submitted that the amount awarded by the Collector and approved by the learned District Judge is adequate. It is based upon the income tax return of the appellants. The amount claimed by the appellants is …4… disproportionately exaggerated having no basis for such huge amount, he thus prayed for dismissal of the appeal. 5. One of the questions is very legality of awarding of supplementary award and maintainability of the reference petition under Section 18 of the Act before the Collector. It has not been denied that pursuant to the notification under Section 4 of the Act published in the H.P. Rajpatra on 4.12.1982, land comprised in khasra No.79, measuring 4 bighas 4 biswas in village Badhai ( Dhalli) was acquired and award was made by the Collector on 9.10.1985. The appellants filed an application dated 24.1.1986 before the Collector for claiming compensation and on the basis of that application the Collector made the supplementary award dated 30.1.1987/15.2.1987. In the opening line of the supplementary award the Collector has observed that the award in the case has already been made on 9.10.1985. Once the award was made by the Collector on 9.10.1985 he ceased to have jurisdiction under the Act to make supplementary award with respect to same land, property regarding which he has already made the award. After making the award the Collector under the Act has been authorized to take some further actions pursuant to award but no jurisdiction to make supplementary award with respect to same subject matter. The jurisdiction of Collector after making the award came up for consideration before the Hon’ble Apex Court in Orissa Industrial Infrastructure Development Corporation vs. Supal Munda and others [AIR 2004 Supreme Court 390]. In that case award under Section 11 of the Act was passed on 25.7.1992. The notification …5… under Section 12(2) of the Act was issued to the respondents- claimants on 27.7.1992. An agreement was allegedly made with landowner on 6.8.1992, on the basis of which the payment of compensation was made on that date, allegedly on the agreed terms. The first respondent preferred an application under Section 18 of the Act on 17.9.1992 for higher compensation. On 8.12.1992 Land Acquisition Officer declined to refer the application under Section 18 of the Act to the competent civil Court. This order was assailed by way of civil revision petition before the High Court and on 11.9.1995 High Court set aside the order dated 8.12.1992 and directed the Land Acquisition Officer to re-hear the question of maintainability of the application under Section 18 of the Act. The Land Acquisition Officer thereafter heard the matter afresh and rejected the application by order dated 15.12.1995 which was again set aside by the High Court on revision. The High Court directed the authority to send the reference to the appropriate civil Court within a period of one month from the date of receipt of the order. This order of the High Court came up for consideration before the Hon’ble Apex Court and in para-11 of the judgment the Hon’ble Supreme Court has held as follows:- “The Award of 25.7.1992 was clearly passed in a proceeding under Section 11 of the Act. At the time of the hearing learned counsel for the State, Mr. J.K. Das, also produced an English version of the Award dated 6.8.1992 said to have been passed pursuant to the agreement dated 6.8.1992 . The subsequent Award dated 6.8.1992 is shown to have been passed under Section 11(2) of the Act. We are surprised to note as to …6… how the subsequent award dated 6.8.1992 was made pursuant to the alleged agreement made on 6.8.1992. We smell the rats. When the Award is made by the Collector under Section 11 of the Act, the proceedings before him stand terminated as soon as the Award is made. The provision of sub-section (2) of Section 11 is attracted only at any stage of the proceedings before the Collector. That is to say, if the Collector has not passed the Award under Section 11 of the Act and the proceedings before him were still subsisting. In the present case, it clearly appears from the Award dated 25.7.1992 itself that it was made under Section 11 of the Act”. 6. In the present case also after the award dated 9.10.1985 the Collector on the application dated 24.1.1986 of the appellants proceeded to pass the supplementary award dated 30.1.1987/15.2.1987. The learned counsel for the appellants except for making the submission that the Collector has jurisdiction to pass the supplementary award has not pointed out any provision of law under which after the award dated 9.10.1985, the Collector has jurisdiction to pass the supplementary award on the application of appellants. In Orissa Industrial Infrastructure Development Corporation (supra), the Hon’ble Supreme Court has held that as the award is made by Collector under Section 11 of the Act, the proceedings before him stand terminated as soon as the Award is made. It is not the case of either side that earlier award dated 9.10.1985 was not made by the Collector under Section 11 of the Act. In my opinion the Collector after having passed the award on 9.10.1985 has no jurisdiction to pass supplementary award on the …7… application of the appellants. Hence, on this ground alone the appellants are not entitled to any relief in the appeal. 7. On merits also no fault can be found with the finding recorded by learned District Judge. PW-1 R.K. Gupta, Clerk, UCO Bank, Dhalli has placed on record Ex.P-1 copy of entries in the register pertaining to the accounts of M/s. Himachal Auto Store, Dhalli. PW-2 Murari Dass, Steno-typist, office of Assistant Excise Taxation Commissioner, Kasumpti, Shimla has placed on record Ex.P-2 details of payment of sales tax by M/s. Himachal Auto Store, Dhalli during the year 1984-85 to 1987-88. PW-3 Hari Om Sood has stated that he used to sell motor parts in the acquired shop. The business in the shop was started by his ancestors about 50 years back. The total annual turnover was around rupees ten lacs. He is unemployed because his place of work has been acquired. He had converted the shop into a show room by spending Rs.45,000/- . He was authorized dealer of Mahindra and Mahindra jeep parts. In cross examination he has stated that he used to pay income tax. He has further stated that he owns other property in Shimla Urban area. PW-4 Bhagat Ram, Junior Assistant, HRTC, Tara Devi has stated that HRTC used to purchase auto parts from Himachal Auto Stores, during the years 1984-85 , 1985-86, 1986-87 and 1987-88 spare parts worth Rs.17,66,718.29/- were purchased vide Ex.PW-4A, the details of which are given in Ex.PW-4/B . 8. PW-5 Davinder Bhardwaj, Senior Assistant, Forest Corporation has stated that their corporation used to purchase spare parts from Himachal Auto Stores, Dhalli. As per statement …8… Ex.PW-5/A, spare parts worth Rs.6,42,195.39/- were purchased from 1984-85 to 1987-88. PW-6 Atamjit Singh Accountant, Punjab and Sind Bank, Sanjauli has placed on record Ex.P-6 copy of entries in the ledger book pertaining to the account of M/s. Himachal Auto Store. 9. RW-1 K.S. Verma, Secretary Marketing Committee, Shimla has stated that office of Marketing Committee, Shimla is situated in Dhalli. Their office is located in the upper storey and in the lower storey Hari Om Sood runs a shop of spare parts in the name and style of M/s Himachal Auto Store. In addition to two storeys, there is a basement also in which Hari Om Sood has his godown. The building was acquired by Marketing Committee, but even after acquisition the ground floor and basement of the building are in occupation of the M/s. Himachal Auto Store. Hari Om Sood has another shop in which the business of motor spare parts which is on the border of Sanjauli and Dhalli. The said shop is being run in the name and style of Bombay Auto Store. In cross-examination he admitted the suggestion that M/s. Himachal Auto Store has a shop and three godowns in the building in question. RW-2 Kali Ram, Daily Wages Clerk, Wool Federation , Kasumpti has placed on record bills, cash memos regarding the repairs of vehicles got done from M/s. Bombay Auto Centre which are Ex. RW-2/A to Ex.EW-2/E. RW-3 V.P. Puri, Manager, PNB, Sanjauli has stated that the bank is is located in the building of Rewal Chand Sood in Sanjauli and he has placed on record lease deed Ex.RW-3/A. …9… 10. The notification under Section 4 of the Act was published in the Rajptra on 4.12.1982. In Ex.P-1 the entries are from 1985 to 1988. In Ex.P-2 the payment of sale tax by M/s. Himachal Auto Store, Dhalli has been shown from the years 1984-85 to 1987-88. Ex.PW-4/A and Ex.PW-4/B are also of the years 1984-85 to 1987-88. Ex. PW-5/A is also of the period from 1984-85 to 1987-88, in Ex.P-6 entries start from 1.12.1987 on wards. Therefore, none of these documents are around the period 4.12.1982 when the notification under Section 4 of the Act was issued. The appellants can not take any benefit of these documents in support of their claim. RW-3 has proved lease deed Ex.RW-3/A vide which rent of the lease property is Rs.7,000/- per month. In the supplementary award dated 30.1.1987/15.2.987 of the Collector it has been observed that claimant himself has admitted that he earns Rs.60,000/- to Rs.80,000/- per annum and from the assessment order under Section 143 (1) of the Income Tax Act, 1961, it is found that total income for the year 1982-83 was assessed at Rs.54,520/- which amounts was awarded by the Collector vide supplementary award. The compensation on account of injuriously effecting the earnings due to acquisition cannot exceed the actual injury or loss caused at the time of Collector taking possession. As per clause fourthly of Section 23(1) of the Act, the loss of earnings subsequent to taking over of the possession is not relevant for determining the compensation. In Jaspal Singh and another vs. Union of India and another (1997) 2 Supreme Court Cases 640 the Hon’ble Supreme Court has held that compensation equivalent to 5-6 months …10… earning from business is reasonable. In the present case as per appellants’ own showing income was assessed by Income Tax Department at Rs.54,520/- which amount was awarded by the Collector. No fault can be found with the impugned award. The appellants have failed to make out any case for interference. Accordingly, appeal is dismissed. ( Kuldip Singh) Judge January 10, 2008 (sks) .