R.F.A. No. 2068 of 1994 1
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
R.F.A. No. 2068 of 1994
Date of Decision : 1.9.2009
M/s Budhi Raja Traders through its Prop. Ved Parkash r/o Vill. Devi
Nagar, Teh. Kalka Distt. Ambala
.......... Appellant
Versus
The State of Haryana
...... Respondent
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. Sudhir Mittal, Advocate
for the appellant.
Mr. Rajeev Kawatra, Sr. DAG, Haryana.
****
VINOD K. SHARMA, J. (ORAL)
This order shall dispose of (i) RFA No. 2068 of 1994, titled
M/s Budhi Raja Traders Vs. The State of Haryana, (ii) RFA No. 2069 of
1994, titled M/s Krishan Lal and Co. Vs. The State of Haryana, (iii) RFA
No. 2070 of 1994, titled Ram Kirat Vs. The State of Haryana and (iv) RFA
No. 2040 of 1994, titled M/s Hanuman State Trader Vs. The State of
Haryana, as common questions of law and facts are involved in these
appeals.
For the sake of brevity facts are being taken from RFA No.
2068 of 1994, titled M/s Budhi Raja Traders through its Prop. Ved Parkash
r/o Vill. Devi Nagar, Teh. Kalka Distt. Ambala Vs. The State of Haryana.
R.F.A. No. 2068 of 1994 2
The State of Haryana vide notification dated 31.8.1987 issued
under Section 4 of the Land Acquisition Act, 1894 ( hereinafter referred to
as “the Act”) showed its intention to acquire land in the area of Panchkula
for development and utilization of land as recreational and commercial for
Sector 3 Urban Estate, Panchkula. Notification under Section 6 of the Act
was published in Haryana Government Gazette dated 26.7.1988. The award
was given by the Land Acquisition Collector on 27.3.1989. The award was
consolidated for compensation regarding to the acquired land as well as
regarding building structure and trees standing thereon and also for the loss
of business and shifting charges in respect of the interested persons.
The land lowers being dissatisfied with the award of the Land
Acquisition Collector sought reference under Section 18 of the Act seeking
enhancement of the market value of the land as well as the superstructure.
The question of market value of the acquired land is not the
subject matter of this appeal, as the same has been adjudicated separately by
filing separate regular first appeal.
In the case of RFA No. 2068 of 1994, titled M/s Budhi Raja
Traders through its Prop. Ved Parkash r/o Vill. Devi Nagar, Teh. Kalka
Distt. Ambala Vs. The State of Haryana, the Land Acquisition Collector
assessed the compensation payable for superstructure as Rs. 6691/-. The
appellant had claimed compensation to the tune of rupees nine lac for
building structure. He further claimed compensation for loss of business.
Though on the pleadings of the parties, one of the issues framed, was “What
was the market value of the acquired land at the time of acquisition ?”, as
R.F.A. No. 2068 of 1994 3
already observed above, the said issue was not pressed.
The only dispute with which we are concerned is with regard to
the compensation payable for the superstructure. In support of the claim set
up by the landowners, the appellant examined Sh. H.L. Dhammi,
Superintending Engineer ( Retired) from P.W.D. ( B & R) Haryana, who
appeared as PW-1 and submitted his report, which was said to have been
prepared on the basis of P.W.D. Schedule of rates. The report was duly
exhibited as Ex. P1.
The respondent / State contested the reference by examining
Sh. O.P. Sardana, Sub Divisional Engineer, HUDA, who submitted his
report with regard to the assessment of the value for the superstructure. The
learned reference Court accepted the version of the State and thereby
assessed the compensation payable at Rs. 8363/-.
The finding recorded by the learned Reference Court reads as
under :-
“12. Report copy of which is Ex.P-1
has been prepared by engineers of
HUDA i.e. a state owned Public
undertaking in the discharge of
their Public duties. All the
structures as claimed by the
petitioner has been evaluated by
engineers while preparing report
Ex. R.1. It is not the case of the
petitioner in the petition that
any of the existing structure has
not been take into consideration
while preparing report Ex. P.1.
R.F.A. No. 2068 of 1994 4
Hence there cannot be said to be
any dispute regarding measurement
of the existing structure as
mentioned in report Ex. R.1. The
very perusal of report Ex. R.1
show that the same has been
prepared by applying different
rates for different items as per
Haryana P.W.D. Schedule of rates
with latest premium. 10% extra for
other under seen items have also
been allowed while preparing
report Ex. R.1.
13. On the other hand perusal of
report Ex. P-1 as prepared by me
expert engaged by the petitioner
shows that the said report is
imaginary without giving any
detail of rates of different items
as per Haryana P.W.D. Schedule of
rates. He applied the principle of
per square feet cost of existing
building structure without giving
any detail as to how he arrived at
the said cost. He has mentioned in
his report that office room was
having ‘kuthca’ floor and wooden
batten roof and that country made
wood has been used. However, he
has applied the rate at Rs. 60/-
per sq. feet. Similarly, he has
mentioned that the labour huts
were having thatch roof. However,
he applied construction rate as
R.F.A. No. 2068 of 1994 5Rs. 30/- per sq. feet. Even for
brick wall of the jharna he
applied the rate of Rs. 50/- per
sq. feet. Proper depreciation of
the building structure has also
not been deducted by PW1 while
preparing report Ex.P.1. Hence
report Ex. P.1 as given by Sh.
H.L. Dhammi i.e. expert appointed
by the petitioner does not inspire
confidence and hence the same is
not accepted.
14. However, while preparing the
reports Ex. P.1 to Ex. R.2 the
engineers of the respondent State
have deducted 20% of the assessed
value on the plea that the owner
did not allow dismantling of the
foundation and on account of
alleged non-adoption of standard
section of foundation etc.
However, no detail of the same has
been given by the engineer of the
respondent State as well. Hence in
my view this deduction of Rs. 821+
851 = Rs. 1672/- is not
sustainable.
15. Further admittedly the
petitioner is still in possession
of the premises in dispute as he
is running his business despite
the fact that notification for
acquisition of the building
structure was issued in the year
R.F.A. No. 2068 of 1994 61987. Hence the value of the
building structure has further
deprecated. Hence it cannot be
said that the deprecated value of
the building has not been properly
assessed while preparing report
Ex. R.1.
16. As a sequel to my above
discussion, I am of the view that
the petitioner is entitled for Rs.
8363/- as compensation for the
existing building structure.
Accordingly, this issue stands
decided partly in favour of the
petitioner and against the
respondent.”
The learned counsel appearing on behalf of the appellant
contends that, the award passed by the learned Reference Court deserves to
be modified inasmuch as the learned Reference Court had completely
ignored the evidence of the expert produced by the appellant, which was not
permissible. It was for the Court to have drawn a balance between the
reports of the experts, produced by the State and that produced by the
appellant.
In support of this contention the learned counsel for the
appellant has placed reliance on the judgment of this Court in the case of
RFA No. 1797 of 1994 titled Ved Parkash and Company Vs. The State of
Haryana, through Land Acquisition Collector, HUDA, Panchkula, decided
on 26.5.2009. This Court in similar circumstances was pleased to hold that,
the report by the expert produced by the appellant could not be totally
R.F.A. No. 2068 of 1994 7
rejected and thereby accepted the appeal while enhancing the compensation
by 50% of the assessed compensation by the learned Reference Court.
The learned Sr. DAG, Haryana, however, contends that the
facts of the case of Ved Parkash and Company Vs. The State of Haryana
( supra) are distinguishable, as the report by the expert of the appellant was
rightly rejected, as it was not based on any settled principle and was merely
imaginary, whereas that was not the case in the case relied upon by the
appellant.
The contention raised by the learned Sr. DAG, Haryana cannot
be accepted. The facts of the case in Ved Parkash and Company Vs. The
State of Haryana ( Supra ) were identical, rather the expert produced in the
said case was also Mr. Dhammi, whose report has been relied upon by this
Court in the case of Ved Parkash and Company Vs. The State of Haryana
(Supra)
In view of the law laid down by this Court in the case of Ved
Parkash and Company Vs. The State of Haryana ( Supra ), these appeals are
allowed. The appellants are held entitled to enhancement of the
compensation by 50% of the assessed value by the learned Reference Court.
The appellants shall also be entitled to other statutory benefits on the
enhanced compensation.
The claim regarding loss of business, is rejected in view of the
decision by this Court in the case of Ved Parkash and Company Vs. The
State of Haryana ( Supra ).
1.9.2009 ( VINOD K. SHARMA ) 'sp' JUDGE