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2017 DIGILAW 702 (HP)

General Manager, NHPC v. Kiran Rekha Sood

2017-06-21

VIVEK SINGH THAKUR

body2017
JUDGMENT : Vivek Singh Thakur, J. Appellants have assailed award dated 6.8.2010 passed in reference petition No. 93 of 2008 by learned Additional District Judge, Fast Track Court, Kullu whereby awarded amount of compensation vide award No. 21-A dated 28.2.2007 passed by Land Acquisition Collector, NHPC, PHEP, Kullu, for acquiring the house of respondent, has been enhanced. 2. Appellants have questioned impugned award on the ground that enhancement of compensation by learned Additional District Judge is based upon PW2 Kuldeep Singh Assistant Engineer, DRDA, who was not reliable witness for the reason that valuation of house by same witness on two occasions has variance of Rs.25000/- as at first instance, he calculated the value of house as Rs.9,90,430/- and on subsequent evaluation, he calculated the value of house as Rs.10,15,190/-. Further also on the ground that valuation carried out by Executive Engineer, PWD has been wrongly discarded by learned Additional District Judge, whereas Land Acquisition Collector had rightly relied upon the valuation of Executive Engineer PWD, who, as also admitted by PW2 Kuldeep Singh in his cross examination, was authorised evaluator of NHPC, whereas PW2 Kuldeep Singh was not an employee of the Government but was serving as Assistant Engineer with an autonomous authority i.e. DRDA. 3. Learned counsel for respondent has supported the impugned award on the ground that learned Additional District Judge has committed no mistake in discarding the evaluation of Executive Engineer, PWD for the reason that said evaluation has not been proved on record in accordance with law and there was only one duly proved evaluation of house of respondent on record which has been rightly relied upon by learned Additional District Judge for enhancing the amount of compensation in favour of respondent. 4. Perusal of award passed by Land Acquisition Collector reflects that assessment of houses by Executive Engineer, PWD was also carried twice. At first instance, value of house of respondent was calculated by him as Rs.5,63,135/- and on objection of some of house owners, under directions of Deputy Commissioner, Kullu, PW2 Kuldeep Singh Assistant Engineer, DRDA was directed to re-assess the value of house including the house of respondent. As per valuation carried out by PW2, value of house was found 9,90,430/-. At first instance, value of house of respondent was calculated by him as Rs.5,63,135/- and on objection of some of house owners, under directions of Deputy Commissioner, Kullu, PW2 Kuldeep Singh Assistant Engineer, DRDA was directed to re-assess the value of house including the house of respondent. As per valuation carried out by PW2, value of house was found 9,90,430/-. In the meanwhile, re-assessment of extra cost of the houses on prevailing market rates on the date of notification under Section 4 of Land Acquisiton Act 1894 was also carried out by Executive Engineer(PWD), Kullu and in this re-asseement value of house of respondent was determined as 7,63,535/-. Land Acqusition Collector did not consider the value carried out by PW2 Assistant Engineer, DRDA but relying upon only on second assessment carried out by Executive Engineer PWD, he awarded Rs.7,63,535/- for acquisition of house of respondent. 5. There is variance, with a difference of about two lacs in two assessment of same house carried out by Executive Engineer PWD. Second assessment of the said Executive Engineer, though relied upon by appellants, but not proved by examining him as a witness. Appellants have examined only one witness i.e. RW1 Gomati Nandan Junior Engineer, PWD who placed on record map of house of respondent Ext.RW1/A and details of measurement Ext.RW1/B. But neither map nor details were prepared by him nor he stated that he was ever associated with Executive Engineer or otherwise in carrying out assessment, preparation of map Ext.RW1/A or details of measurement Ext.RW1/B. The assessment carried out by Executive Engineer PWD has not been proved on record. 6. Stand/case of a party to lis constructed by pleadings. But pleadings are no substitute of proof and pleadings are to be proved by leading relevant and admissible evidence. In absence of evidence pleading cannot be said to be proved. (See para 19 of Manager, Reserve Bank of India, Bangalore vs. S. Mani and others (2005)5 SCC 100 and para 1 of Anvar P.V. vs. P.K. Basheer and others (2014)10 SCC 473 ). 7. In absence of evidence pleading cannot be said to be proved. (See para 19 of Manager, Reserve Bank of India, Bangalore vs. S. Mani and others (2005)5 SCC 100 and para 1 of Anvar P.V. vs. P.K. Basheer and others (2014)10 SCC 473 ). 7. Respondent has examined Assistant Engineer DRDA Kuldeep Singh as PW2 who proved assessment, carried out by him, of house of respondent placing the same on record as Ext.PW2/A. In his examination in chief, he has explained the variance in his two reports by stating that value of house of respondent was 9,90,430/- but including assessment charges value of house was 10,15,190/- and the said clarification has not been disputed in his cross examination by appellants. Therefore, clarification of PW2 stands admitted and plea of appellants that there was variance in two assessments of PW2 is not sustainable as non-cross examination on a point deposed by witness amounts to admission/acceptance of that version. (See para 40 of Laxmi Bai vs. Bhagwant Bua (2013)4 SCC 97 , para 14 of Gian Chand and others vs. State of Haryana (2013)14 SCC 420 ). 8. Executive Engineer PWD was not examined and assessment prepared by him was also not duly proved on record and on the contrary, PW2 Kuldeep Singh has been examined as a witness and in his cross examination or otherwise nothing has been brought on record to impeach his veracity who has duly proved assessment carried out by him on record. It is also noticeable that PW2 had not carried out assessment of house on his own or at instance of respondent but he had assessed the value of house of respondent under the directions of Deputy Commissioner. Variance in value of house in assessment made by his stands duly explained, whereas variance in value of house in assessment carried out by Executive Engineer remained unexplained. 9. No other point urged or issue raised. From the above discussion, it is apparent that learned Additional District Judge has completely and correctly appreciated the evidence on record and has not committed any illegality or irregularity by relying upon the assessment carried out by PW2 Kuldeep Singh and discarding the evaluation carried out by Executive Engineer PWD. There is no perversity in impugned award and therefore, I find no merit in plea raised by appellants and no ground for interference in impugned award has been made out. There is no perversity in impugned award and therefore, I find no merit in plea raised by appellants and no ground for interference in impugned award has been made out. Accordingly appeal is dismissed. Record of the Court below be sent back forthwith. Interim orders also stand vacated in above terms. No order as to costs.