Pradip Kumar Banerjee & Ors vs The State Of West Bengal
2022 Latest Caselaw 4758 Cal

26.07.2022
Court No.12
 S/L. No.2
  Suvayan/
  Sourav
                                FA 244 of 2004
                                     With
               IA No. CAN 2 of 2005 (Old No. CAN 8104 of 2005)

                         Pradip Kumar Banerjee & Ors.
                                      Vs.
                           The State of West Bengal

              Mr. Bhudeb Bhattacharyya
              Ms. Sohini Bhattacharyya
                                               ...for the appellants.

              Mr. Ayan Banerjee
              Ms. Debasree Dhamali
              Mr. Suman Banerjee
                                                    ...for the State.


                   1) Heard Mr. Bhudeb Bhattacharyya, learned

              Counsel appearing for the appellant and Mr. Ayan

              Banerjee, learned Counsel appearing for the State.

              This is the second round of litigation in the same

              appeal.

                   2) This First Appeal at the instance of the

              referring claimant was directed against an award

              dated January 30, 2002 passed by the learned Land

              Acquisition Tribunal, Howrah in L.A. Miscellaneous

              Case No. 15 of 1991 thereby enhancing the amount of

              compensation payable to the appellants from Rs.

              9,000/- and odd per cottah to Rs. 20,000/- per cottah

              as regards the portion of land is concerned. Other

              consequential order regarding solatium and interest

              had also been passed.

                   3) When the appeal was heard on November 1,

              2008, two questions were raised by the learned
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Counsel for the appellant. First, I n the same vicinity

in respect of similarly situated land decided in L.A.

Misc. Case No. 3 of 1996 award has been passed on

June 6, 2003 giving higher compensation to the

claimant therein. Secondly, It was further submitted

that the valuation report submitted by the valuer

appointed by the appellant had not been adduced as

evidence before the Tribunal by intervention of the

death of predecessor-in-interest of the substituted

appellants and for that purpose a petition was filed in

the appeal under Order 41 Rule 27 of the Code of Civil

Procedure for adducing additional evidence. Two

different awards passed by the learned Tribunal below

in respect of acquisition of different lands in the

adjoining area indicating that the valuation of the land

in the adjoining area was much more than Rs.

20,000/- per cottah awarded by the learned Tribunal

were placed before this court. Apart from the aforesaid

two   judgments,    the   appellants      also   prayed      for

admission of additional evidence on the question of

valuation   of   structure,       which   is   also   part   of

acquisition, pointing out that the original referring

claimant had appointed a valuer for the purpose of

assessing the valuation of such structure and the

report was also ready but due to the death of the

original referring claimant, the said valuation report

could not be obtained from the valuer.
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      4) Taking into consideration, the rival contention

of the parties, this Court remanded the matter by

passing the following orders:

              " Since the Reference application is
        pending for the last 18 years, we propose
        to pass a limited order of remand in
        exercise of our power conferred under
        Order 41 Rule 25 of the Code of Civil
        Procedure     by    directing         the    learned
        tribunal below to take evidence for the
        purpose of formally proving Annexures P-2
        and P-3 and to permit the appellants to
        examine the author of Annexure P-3 and
        also to lead further evidence for the
        purpose of showing that the land involved
        in Annexure P-2 is of the similar quality
        and in the same locality. It is needless to
        mention that the learned tribunal below
        will also permit the state respondent to

adduce further evidence in rebuttal only on the question of valuation of the structure and valuation of the land. The Learned trial Judge, after recording such evidence, will also record its finding whether the land involved in Annexure P-2 is of the similar nature and in the similar locality and will make further assessment as regards valuation of the structure after taking into consideration the additional evidence that will be adduced by the parties. Such finding with the deposition be returned to this court within three months from the date of receipt of this order."

5) After the remand, learned L.A. Tribunal took

up the matter and disposed of the same on June 8,

2010 on the basis of the direction by this Court

"Supra". Both the parties were given opportunity to

adduce evidence and on the basis of the evidence

adduced, following issues were framed by the learned

L.A. Tribunal:

"1) Whether the land involved in Annexure 'P/2' is of the similar nature and in the similar locality? And

2) Whether further assessment regarding the valuation of the structure is necessary on the face of additional evidence being led in this case."

6) So far as the issue no. 1 is concerned, learned

L.A. Tribunal took into consideration the claim of

similarity between holding No. 526/2, Sarat Chatterjee

Road, Howrah (appellant's land) and holding no. 10/3,

Hiralal Banerjee Lane, Howrah. The judgment in

respect of which was proved vide Exhibit - 2. On

consideration of the materials on record and

discussion of such materials on record, learned L. A.

Tribunal came to hold that the distance between

holding No. 526/2, Sarat Chatterjee Road, Howrah

and holding no. 10/3, Hiralal Banerjee Lane, Howrah

is 70/80' ft. and they are situated in the same vicinity.

Though no evidence was adduced regarding the soil

test, etc. in respect of holding No. 526/2, Sarat

Chatterjee Road, Howrah. The learned L.A. Tribunal

fairly held that in view of the distance between the two

lands and the nature of topography there both the

aforesaid lands can be held to be in the same vicinity

and must be held to be similar. So far as the holding

no. 10/3, Hiralal Banerjee Lane, Howrah which was

the subject matter of L.A. Misc. Case No.3 of 1996 is

concerned, the award passed in L.A. Misc. Case No.3

of 1996 was challenged before this Court in FA 286 of

2005. This Court affirmed the land value of the

aforesaid land as decided by the learned L.A. Tribunal

regarding enhancement to the tune of Rs.25, 000/-

per cottah instead of Rs.6,410 per cottah as decided

by the L.A. Collector, Howrah.

7) Taking into consideration, such finding of this

Court in FA 286 of 2005 and the finding to the effect

that the appellant's land, i.e., holding No. 526/2, Sarat

Chatterjee Road, Howrah and holding no. 10/3,

Hiralal Banerjee Lane, Howrah are in the same vicinity

learned L.A. Tribunal limited the amount of

compensation for land to Rs.25,000/- per cottah so far

as the land of the appellants' is concerned.

8) We are of the considered view that this Court

having decided the value of the similarly situated land

in respect of holding no. 10/3, Hiralal Banerjee Lane,

Howrah at Rs.25,000/- per cottah, learned L.A.

Tribunal could not have taken a view otherwise. We

also being a co-ordinate Bench can not take a different

view and we confirm the order of learned L.A. Tribunal

so far as the valuation of land in respect of holding No.

526/2, Sarat Chatterjee Road, Howrah is concerned.

9) Coming to the compensation in respect of

structure in question there was two storied pakka

house in 1 cottah of land in holding no. 10/3, Hiralal

Banerjee Lane, Howrah but so far as the land of the

appellant, i.e., holding No. 526/2, Sarat Chatterjee

Road, Howrah is concerned it is a single storied

building with three room and half constructed shop

rooms without roof bounded by brick boundary wall.

10) Learned Counsel for the appellant heavily

leans on the evidence of PW-2 (the valuer) to submit

that the valuation of the structure would be much

more than the valuation made by the learned L.A.

Tribunal.

11) We find that the valuation report is dated

29.07.1990 though the land acquisition notification

was published on 21.05.1982 and admittedly the

structure on holding No. 526/2, Sarat Chatterjee

Road, Howrah had already been razed by that time.

12) The learned L.A. Tribunal has rightly

observed that there could not have been proper

valuation after the building was razed, there being no

specific report by PW-2 to the effect that by which

material building was constructed, when it was

constructed, etc. Admittedly, the building by the

appellants on their land was constructed during their

grandfather's time and the valuation of the structure

was fixed on the basis of the norms of PWD's rules

applicable for 1980.

13) Taking into consideration all these facts,

learned L.A. Tribunal negated the claim of the

appellant for higher compensation at par with the

structure standing on holding no. 10/3, Hiralal

Banerjee Lane, Howrah. Taking into consideration all

other facts and circumstances, the learned L.A.

Tribunal enhanced the claim in respect of structure to

Rs.1,00,000/- holding that such compensation is far

enough for the structure.

14) While disposing of the appeal, we are of the

view that while assessing the value of structure, the

learned L.A. Tribunal should also have taken into

consideration the prospect of development around the

appellants' land in future. We, therefore, are of the

view that the just compensation for the structure on

the land of the appellant should be enhanced to

Rs.1,25,000/-. With the aforesaid modification only in

the impugned award, we confirm the order passed by

the learned L.A. Tribunal, Howrah as we do not find

any infirmity in the same.

15) The State is directed to pay the enhanced

compensation along with other consequential amount

pending, to the appellants within a period of three

months from today.

16) It is made clear that so far as the claim of

solatium etc. is concerned, the order of Land

Acquisition Tribunal shall be complied with.

17) The appeal being FA 244 of 2004 is allowed

in part and accordingly disposed of.

18) In view of the above order interim

application being CAN 2 of 2005 (Old No. CAN 8104

of 2005) stands disposed of.

(Chitta Ranjan Dash, J.)

(Aniruddha Roy, J.)