JUDGMENT
R.L. Anand, J.
1 This Letters Patent Appeal No. 765 of 1987 titled Smt. Sanjoyta Sehgal and Ors. v. State of Haryana and Anr., has been directed against the judgment dated 8.4.1987, passed by the learned Single Judge in Regular First Appeal No. 2004 of 1984, filed by the landowners and Regular First Appeal No. 2167 of 1984, filed by the State of Haryana, against the award dated 26.7.1984, delivered by the Additional District and Sessions Judge, Gurgaon, who decided the reference application under Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’) filed by the land-owners.
2. It may also be mentioned here that vide the impugned judgment dated 8.4.1987, the learned Single Judge partly allowed the Regular First Appeal No. 2004 of 1984 of the landowners and dismissed the Regular First Appeal No. 2167 of 1984 filed by the State of Haryana.
3. The facts of the case can be summarised in the following manner:-
4. In pursuance of the notification issued under Section 4 of the Act, published in the Haryana Government Gazette dated 19.5.1979, the land measuring 1.25 acres classified in the revenue record as Magda/Gair Mumkin, situated within the Revenue Estate of Sukhrali, Had Bast No. 76, Tehsil and District Gurgaon, was acquired at the public expense for a public purpose; namely, for the development and utilisation of the land as residential area in Sector 14 by the Haryana Urban Development Authority, a corporate body. The area of the land of the present appellants was 7 kanals, i.e. 4270 sq. yards, on which a factory with structures and boundary wall was in existence on the date of the notification. The Land Acquisition Collector vide his award dated 16.4.1982 fixed the market value of the acquired land at the rate of Rs. 17/- per sq. yard. He also assessed the compensation for the building/structures then in existence on the acquired area at Rs. 37,645/-. The landowners were not satisfied with the award of the Land Acquisition Collector and they sought a reference under Section 18 of the Act and the Additional District and Sessions Judge, Gurgaon, decided the reference through an award and assessed the market value of the land at the rate of Rs. 35/- per sq. yard and further assessed the cost of the superstructures/building at Rs. 82,000/-. Still not satisfied with the award of the Additional District and Sessions Judge, the landowners filed R.F.A. No. 2004 of 1984, decided by the learned Single Judge vide the impugned judgment. The learned Single Judge awarded compensation of the land at the rate of Rs. 40/- per sq. yard as against Rs. 35/- per sq. yard and awarded a sum of Rs. 1,09,800/- being the cost of the superstructures as against Rs. 82,000/-, given by the court. Still not satisfied, the landowners have filed the present Letters Patent Appeal, which I dispose of with the assistance rendered by Shri V.K. Jain, Senior Advocate, assisted by Shri Raman Kumar, Advocate on behalf of the appellants. Nobody has put in the appearance on behalf of the State of Haryana.
5. It may be mentioned at this stage that while awarding the compensation of the land and the superstructures, the learned Single Judge had also awarded solatium at the rate of 30% on the enhanced amount of compensation. The landowners were further held entitled to an amount at the rate of 12% from the date of notification under Section 4 of the Act, i.e. 19.5.1979, upto the date of award of the Collector, i.e. 16.4.1982. They were also awarded interest on the enhanced amount at the rate of 9% for a period of one year from the date of their dispossession and at the rate of 15% for the period subsequent thereto till the date of payment of the amount of compensation. The state has not challenged this aspect of the finding by any separate appeal.
6. Two fold contentions were raised by the learned senior counsel. Firstly, it was submitted that the named Single Judge committed an error and was not justified when he awarded the compensation of the land at the rate of Rs. 40/- per sq. yard. The counsel submitted that as per the findings given by the learned Single Judge, it is proved on the record that the market value of the land in question on the relevant date was not less than Rs. 47/- per sq. yard. In support of his contention, the learned senior counsel had drawn our attention to the observations made by the learned Single Judge to the following effect :-
“No doubt, the plots of land sold through these sale deeds are very small in size measuring 167 to 535 sq. yards but these cannot be completely ignored from consideration, particularly when reference to the plan Ex.P.8 shows that all these plots are located in the interior of the DLF Colony, and the land under acquisition abuts the National Highway. Therefore, while possibility cannot be ruled out that small developed plots were sold vide the above said sale deeds in the DLF Colony with amenities like roads, lawns, etc., it cannot be overlooked at the same time that the land under acquisition was already under a factory about 50% structure of which had been constructed about a year before the date of notification under Section 4 of the Act.”
7. The counsel submitted that the learned Single Judge himself had held that the acquired area abuts the National Highway. In these circumstances, its potential value should be determined on the basis of residential area. The area in dispute is situated on the National Highway, the location of which is far superior than that of the location of the Colony. The transactions relied upon by the appellants prima facie establish that in the month of February and March, 1979, the price of the land per square yard was not less than Rs. 50/- per square yard. Even if some allowance is given to the State, keeping in view the fact that the acquired area is larger as compared to the transactions, Exhs.P-16 and P-17, relied upon by the appellants, still the market value of the land at the relevant date should not be less than Rs. 47/- per sq. yard.
8. The submissions raised by the learned counsel for the appellants, in our view, can be accepted in part. No doubt the instances of sale of small pieces of land cannot be taken into consideration when we are to determine the price of the land, the area of which is larger. In the present case, the area involved is only 4270 sq. yards and it cannot be said that it was large to the extent that no reliance can be placed on the transactions, Exhs.P-16 and P-17. The learned Single Judge had himself admitted in the impugned judgment that the land in question abuts the National Highway. This land has a lot of potential. It can be easily used for residential purpose. Even, the learned Single Judge had stated in the impugned judgment that the instances of sale covered by the documents, Exhs.P-1 to P-5 and Exhs.P-16 and P-17, could provide guidance for the determination of compensation qua the acquired land. It has also been observed by the learned Single Judge that the land in dispute is located towards the side of Delhi on Mehrauli-Gurgaon road and the location of the land covered by the sale deeds, Exhs.P-1 to P-5 and Exhs.P-16 and P-17, was towards the side of Gurgaon. In this view of the matter, it can be safely held that the location of the land in question is definitely on the better side.
9. In the light of the above discussion, we are of the considered opinion that the market value of the land on the relevant date would not be less than Rs. 45/- per sq. yard. Thus, we are inclined to enhance the market value of the acquired land by Rs. 5/- per sq. yard and the same is hereby determined at Rs. 45/- per sq. yard.
10. It was, then, submitted by the learned counsel for the appellants that the learned Single Judge again went in error by holding that the value of the superstructures was Rs. 1,09,800/-. The learned senior counsel submitted that the appellants led evidence, both oral and documentary, in order to support the contention that the market value of the superstructures over the acquired area was not less than Rs. 1,77,191//In support of his contention, the learned counsel relied upon the statement of PW-3 Y.D. Adlakha, a Chartered Engineer, who inspected the site in dispute on 17.3.1982 and prepared the estimate of the superstructures vide his report Exh.P-6 dated 17.5.1982. According to Mr. Jain the State was afforded full opportunity to cross-examine this witness but no cross-examination was conducted upon this witness, as a result of which, it should be presumed that the State had no comments to offer on the statement of this witness and his report has to be accepted in its totality.
11. So far as the legal position is concerned, there is no dispute that if on a particular fact that witness has not been cross-examined, the court will presume that the said fact has not been challenged by the opposite party. However, the onus to prove the cost of the superstructures is still upon the person who claims the compensation of that superstructure. If the report of the Chartered Engineer at its face value, cannot be acted upon in toto, the learned Single Judge was not debarred in rejecting that portion of the report which was contrary-to law. Exh. P6 shows that almost half of the structure on the land was constructed in the year’ 1969 while the other structure was constructed in the year 1978. The structure which was constructed in the year 1969 comprised of a factory shed and the construction made in the year 1978 comprised of buildings. Against the Report, Exh.P-6, the State had also examined Shri S.K. Khanna, Executive Engineer, RW-1, who inspected the site of the land acquired on 17.2.1982 and prepared his report, Exh.R-1. This RW estimated the cost of the structures at Rs. 37,645/- only. While assessing the two valuation reports, the learned Additional District Judge by holding that the chance of exaggeration of valuation on the part of Mr. Y.D. Adlakha, PW-3, could not be ruled out, assessed the value of the structures at Rs. 37,645/- The learned Single Judge made the observation in the impugned judgment as follows:-
“The report of Shri Y.D. Adlakha Ex.R-6 shows that almost half of the structure was built in the year 1969; the remaining was built in the year 1978. I have reached at this proportion of construction in the years 1969 and 1978 by taking the valuation of the structure constructed in the year 1969 which is worked out at Rs. 1,04,359/-. The depreciation based on the age of this structure has been excluded later. The structure constructed in the year 1978 has been valued at Rs. 98,922/- by Mr. Y.D. Adlakha. A reference to the statement of Shri S.K. Khanna RW-1 shows that for the entire structure he has taken the age of the building as 15 years and then depreciation to the tune of 70% of the value of the structure has been deducted to reach at its net value of Rs. 37,645/-. This means that without depreciation he worked out the value of the structure at Rs. 1,25,000/-. Thus, it can be safely presumed that value of half of the structure which was constructed in the year 1978 is Rs. 62,750/-. With regard to the remaining half of the structure constructed in the year 1969,1 find that depreciation to the tune of 70% is very much on the higher side. In my view, Mr. Y.D. Adlakha has correctly applied the factor of depreciation at the rate of 2,5% per year for ten years, i.e. at the rate of 25% for the structure built in the year 1969. Thus, in respect of the structure built in the year 1969 when valued at Rs. 62,750/- as done by Mr. S.K. Khanna RW-1 and deducting from it depreciation at the rate of 25% i.e. Rs. 15,690/-, we find that the net value of this structure comes to Rs. 47,060/-. Thus, the total value of the structure based on the valuation made by Shri S.K. Khanna and applying the factor of depreciation as adopted by Mr. Y.D. Adlakha, the net value of the same comes to Rs. 1,09,810/-. It is to be noted that the respondents could not produce any evidence except the statement of Mr. S.K. Khanna based on visual observations to rebut the evidence of the landowners that half of the structure was built in the year 1969 and the remaining was built in the year 1978.1, therefore, determine the value of the structure over the acquired land at Rs. 1,09,800/-.
12. The above would show that the calculations made by the learned Single Judge are apparently correct and no fault can be found in his observations and we are inclined to endorse the same. The learned senior Advocate has not been able to show how the learned Single Judge has erroneously come to the conclusion when he assessed the cost of the super structures at Rs. 1,09,800/-. In these circumstances, we repel the second contention of the learned counsel for the appellants when he made an effort to convince us that the cost of the superstructures should be enhanced from the one awarded by the learned Single Judge.
13. No other point was urged.
14. Resultantly, we partly allow this appeal and modify the judgment dated 8.4.1987 of the learned Single Judge and enhance the compensation of the acquired land from Rs. 40/-per sq. yard to Rs. 45/- per sq. yard. So far as the awarding of the cost of superstructures is concerned, we affirm the findings of the learned Single Judge. The appellants shall also be entitled to the benefits of solatium, interest and an additional amount at the rate of 12% per annum on the enhanced amount from the date of the notification under Section 4 of the Act upto the date of the award of the Collector, i.e. from 19.5.1979 to 16.4.1982, as already awarded to them by the learned Single Judge. In the present appeal, the parties are left to bear their own costs.