Shri Gopal Krishna Khanna And Ors. vs Union Of India (Uoi) And Ors.
2004 Latest Caselaw 1462 Del

JUDGMENT

B.C. Patel, C.J.

1. In this appeal preferred under Section 54 of the Land Acquisition Act, 1894 (for short "the Act") the appellant is aggrieved by the decision of the learned Additional District Judge dated 31.1.1983 passed in LAC No. 441/71. The appellant is aggrieved essentially by the finding recorded in respect of issue Nos. 3, 3A and 3B which pertain to the valuation placed on the building and structure, fittings and fixures, loss of earnings/profits, change of place of business and incidental damages and expenses. The appellant claimed compensation of Rs. 2,05,000/- for building and structure, Rs. 87,000/- for fittings and fixtures, Rs. 2,16,000/- for loss of earnings or profits, Rs. 50,000/- for change of place of business and Rs. 20,000/- towards incidental damages and expenses on account of acquisition.

2. In so far as building and structure is concerned, the evidence produced by the appellant in a form in the estimate required by PW.2 Shri Om Prakash Goel on the basis of C.P.W.D.Schedule for 1967 has been accepted. The method of valuation has been followed on the basis of replacement cost less depreciation that is permissible on that. In fact the Supreme Court in the case of Administrator General of West Bengal v. Collector, Varanasi (1988) 2 S.C.C.150 in paragraph 17 has clearly indicated that in the "Land and Building Method"on valuation of property, the building value is to be estimated on the basis of prime cost or replacement cost less depreciation. The rate of depreciation is, generally, arrived at by dividing the cost of construction (less the salvage value at the end of the period of utility) by the number of years of utility of the building. Though factors, such as, good maintenance, necessarily influence and bring down the rate of depreciation. However, the latter is a matter of evidence. In the present case, the valuation has been done on the basis of the estimate prepared by Shri Om Prakash Goel, the Architect, on the basis of replacement cost, which was arrived at Rs. 1,96,479.35. In addition Rs. 5681.09 has been assessed towards value of the boundary walls, total value thereby coming to Rs. 2,02,160.44. It has been recorded that the building is 30 to 35 years old and, therefore, 1% depreciation p.a. was allowed, which came to about Rs. 64,700/- and thereby the value of structure so arrived was Rs. 1,37,450/-. In other words, the exact method of valuation, as prescribed by the Supreme Court, has been followed in this case. No interference with this valuation is called for.

3. So far as fittings and fixtures are concerned, the claim made was to the extent of Rs. 87,000/-. It may be pertinent to note that although the appellant/claimant did not produce any evidence in this behalf, as recorded in the impunged judgment, 7% allowance has been given for electric fittings, as noted in the valuation report of the Architect itself, which finds place at page 191 of the paper book. That apart, in so far as loss on earnings/profits, change of place of business and incidental damages and expenses are concerned, when the appellant himself was examined as PW.3 in response to the query in examination-in-chief - What loss you have suffered by this acquisitinon? - The appellant answered as under:-

"My factory has been taken over. I have suffered loss for shifting from this place to some other place. I have suffered loss due to loss of business. Rs. 2,05,000/- has been assessed about my factory, which is the loss which I have suffered. I have suffered about Rs. 50,000/- for shifting. I have suffered a loss of Rs. 1,75,000/- on account of loss of business. I have suffered a loss of Rs. 85,000/- regarding electric connections etc. I have paid shifting charges amounting to Rs. 25,000/-. Due to loss of earnings I have suffered a loss of Rs. 1,00,000/-. I have suffered a loss of Rs. 20,000/- for incidental charges."

4. However, it may be noted that first of all in cross examination the appellant stated that they do maintain account books in regular course of business. His father used to maintain the account books but he did not know what happened to the account books. He further stated that his father used to do business and he was not in business. More particularly he stated that he has no account of payment of shifting charges, incidental charges. Finally, he stated that he has no account about the loss suffered about which he has stated above. Apart from this the figures he has mentioned in the statement of claim and in his examination-in-chief are contradictory. Under the head fittings and fixtures he claimed Rs. 87,000/- whereas in examination-in-chief he stated that he suffered a loss of Rs. 85,000/- regarding electric connections etc. As regards loss on earnings, in the claim the figure mentioned is Rs. 2,10,000/- whereas in examination-in-chief he stated that he suffered loss of Rs. 1,00,000/- only. In any event he has not produced any evidence to substantiate his claim.

5. The learned counsel appearing on behalf of the respondent submitted that the burden of establishing the claim is always on the claimant as pointed out by the Supreme Court in Topan Das Kundan Mal, since deceased thereafter by his heirs and L.Rs. and Ors. v. State through the Land Acquisition Officer, Jam Nagar and Ors. (1995) 5 S.C.C.336, as particularly stated in para 3 thereof.

6. The learned counsel for the appellant relied on the decision in the case of State of Kerala v. Mariaman Abraham and Anr. AIR 1969 Kerala 265 particularly the head note F at page 266 to show that in certain circumstances the claimant's statement may be accepted without any other evidence. This case is not applicable to the facts of the present case in view of the fact that the claimant's statement is itself contradictory to his cross examination in which he has admitted that he has no account about the loss suffered about which he has stated above. Moreover, the Collector arrived at a conclusion on the basis of his claim in respect of the loss and there is no further evidence led by the appellant to challenge that conclusion of the Collector.

6. The learned counsel for the appellant also relied on the decision in the case of Vithal Yeshwant Jathar v. Shikandarkhan Makhtumkhan Sardesai (1963) 2 S.C.R. 285 to show that capitalisation of rent is to be assessed towards loss. In this behalf, he submitted that the building was given on license and the license fee ought to be capitalised and thereafter compensation be given to the appellant. In this case, it is not the valuation of the building which is relevant but the claim is loss on earnings. For such earning capitalisation of rent would have no meaning whatsoever. As such, this decision of the Supreme Court , which pertains to capitalisation of rent for the purpose of computation of compensation of loss of watan lands is not relevant in the facts and circumstances of the present case and valuation of land has already been done and compensation was paid to the owner.

7. In view of the foregoing discussion, no interference is called for except to the extent that the appellant will be entitled to solarium at 30% on enhanced compensation and further interest at 9% p.m for the first year followed by 15% for the following years on the enhanced compensation under Section 28 of the Act from the date of dispossession till payment of the amount in view of the decision of Supreme Court in the case of K.S. Paripoorman v. State of Kerala and Ors. AIR 1995 S.C.1012. The appeal stands disposed of.