Ct. 8 vs Indrajit Ghosh & Ors
2022 Latest Caselaw 3125 Cal

                                                 FAT 104 of 2013
Item 7.
          09-06-2022

  sg                                         State of West Bengal
            Ct. 8
                                                      Versus
                                             Indrajit Ghosh & Ors.

                               Mr. Ayan Banerjee, Adv.
                               Ms. Debasree Dhamali, Adv.
                               Mr. Soumo Chaughudy, Adv.
                                                             ...for the appellant/State

                               Mr. Satyajit Talukdar, Adv.
                               Mr. Abhishek Sarkar, Adv.
                                                             ...for the KMDA

                               Mr. Arun Kumar Raha, Adv.
                               Md. Salamuddin, Adv.
                                                             ...for the respondents

The appeal is at the instance of the State of West Bengal

represented by the Land Acquisition Collector, South 24 Parganas.

The appeal is arising out of a judgement and decree dated 17th

April, 2012 passed by the learned Land Acquisition, Special

Judge, 1st Court at Alipore, South 24 Parganas in LA Case No.

449 of 2004(V) in an application filed under Section 18 of the

Land Acquisition Act of 1894 arising out of LA No. 4/4 of 2001-

2002.

The award-holder challenged the compensation amount

determined by the LA Collector on the ground that the property is

capable of fetching much higher compensation and the said award

was passed disregarding the comparable units in the vicinity. It

was contended that the value of the land acquired measuring 60.75

satak in terms of the Notice dated 31 st March, 2003 is grossly

inadequate as the value of the property should be Rs.2 lakhs per

cottah and the valuation of the building should be calculated on

the basis of the available market value. The said proceeding was

contested by acquiring body.

The point raised for consideration in this appeal is whether

the learned Trial Judge was justified in determining the valuation

on the basis of the market value of the land as it was prevailing in

2003, when admittedly, the Notification under Section 4 sub-

section (1) of the Act was published on 8 th August, 2001. The

claimant produced a duly qualified Surveyor and Valuer to prove

its claim for higher compensation based on sale deeds executed in

or around 2003 as the claimant was of the opinion that since

admittedly, the land was taken possession on 4th April, 2003, the

relevant date for determination of the market value should be

April, 2003 and not August, 2001.

Mr. Ayan Banerjee, learned Counsel representing the

appellant submits that, in view of clear language of Section 23(1)

of the Act, in determining the amount of compensation to be

awarded for the land acquired under the Act, the Court is required

to take into consideration the market value on the date of the

publication of the Notification under Section 4(1) of the Land

Acquisition Act, 1894. He further submits that the learned Trial

Judge erred in law in partly accepting the valuation made by the

Valuer of the claimant and disregarding the valuation as

determined by the Collector during the acquisition proceeding.

The learned Counsel for the KMDA also supports the

submission of the appellant by relying upon two decisions of the

Hon'ble Supreme Court namely, (i) Kolkata Metropolitan

Development Authority vs. Gobinda Chandra Makal & Anr.

reported in (2011) 9 SCC 207 and (ii) Maya Devi (Dead) through

Legal Representative and Ors. vs. State of Haryana & Anr.

reported in (2018) 2 SCC 474. It is submitted that both the

aforesaid decisions have clearly spelt out that in determining the

market value under Section 23(1) of the Act, the rise in the market

value after the publication of the Notification under Section 4(1)

of the Act should not be taken into account for the purpose of

determining the market value. It is the date of the publication of

the Notification under Section 4 which would be relevant for the

purpose of determining the compensation. The learned Counsel

for the claimant, however, submits that since the KMDA had

taken wrongful possession of the land earlier and thereafter on 4 th

April, 2003 for the purpose of determination of the compensation,

the relevant date would be 4th April, 2003. It is submitted that the

learned Judge did not fully accept the valuation report submitted

on behalf of the claimant and had modified a compensation

amount to Rs.1,20,000/- per decimals and on that basis the

compensation amount was revised.

We have considered the valuation report exhibited on behalf

of the claimant (Exhibit-6). It appears from the report prepared by

Sri Prabit Kumar Chowdhury, a Chartered Engineer and Valuer

(PW-2), that the Chartered Engineer has proceeded on the basis

that the material date of an acquisition proceeding would be 3 rd

April, 2003. It further appears that PW-2 was asked by the

claimant to ascertain comparable rate of the land in relation to the

sale transactions of 2003. The Chartered Valuer has also opined

that the valuation of 2002 would be less than the valuation of

2003. However, it has been clearly stated that the acquired land is

about 1 KM to 1.5 KM away from the comparable unit of land of

plot no. 961. Plot 961 was taken as to the comparable plot for the

purpose of determining the market value of the land of the

claimant. DW-1, however, was the Land Officer of KMDA. He

has stated that the possession of the land was taken on 4th April,

2003. The land was acquired for Sonarpur Over Bridge. He could

not independently throw any light on the correctness of the

valuation arrived at by the Collector as he is very candidly stated

that he is not a Valuer and he is not determining the valuation of

the land. He merely identified the plots of land that are required to

be acquired for the purpose of construction of the Sonarpur Over

Bridge.

The fact remains that due to wrong appreciation of law, the

report of the chartered valuer based on sale transaction of 2003 on

behalf of the claimant could not have been accepted. The

respondent also did not adduce any evidence for justification of

the valuation arrived at by the Collector in determining the

compensation for acquisition of the said land. In view of the fact

that no evidence was adduced on behalf of the Collector in

support of the compensation amount determined, based on certain

sale deeds alleged to be of comparable nature and character, the

claimant could not cross-examine the Collector or any witness

produced to prove or justify the report fled the Collector. The

Collector would be the fit person to adduce evidence in support of

the award prepared by him in determining the compensation. The

learned Trial Court has committed a mistake in determining the

compensation at the rate of Rs.1,20,000/- per decimal without

disclosing the basis for such determination. Mr. Banerjee is

correct in his contention that there is no reason furnished in the

impugned judgment for fixing the compensation at the rate of

Rs.1,20,000/-.

On such consideration, we set aside the judgment under

appeal. The matter is remanded to the learned Trial Court for a

fresh consideration. The claimant shall be entitled to adduce

evidence to contradict the basis of the determination of

compensation made by the Collector.

We make it clear that in terms of the decisions of the

Hon'ble Supreme Court in Kolkata Metropolitan Development

Authority (supra) and Maya Devi (supra) as relied upon on behalf

of the KMDA, the relevant date for the purpose of determining the

compensation would be the date of the publication of the

Notification in the official gazette under Section 4(1) of the Land

Acquisition Act, 1894.

The claimant has withdrawn a sum of Rs.50 lakhs form the

amount deposited by the appellant on the date of the admission of

the appeal.

The learned Registrar General is directed to encash the fixed

deposit created in terms of the order dated 9 th September, 2015

and hand over the proceeds thereof to the appellant by a demand

draft to be drawn in the name of "THE LAND ACQUISITION

COLLECTOR, SOUTH 24 PARGANAS" or may remit the same

directly to the designated bank account as may be provided by the

appellant while communicating this order to the learned Registrar

General.

With regard to the amount already withdrawn by the

claimant, the learned Land Acquisition, Special Judge, 1 st Court,

Alipore, South 24 Parganas shall pass suitable orders in respect of

the said amount while disposing of the LA case no. 449/04(V)

finally.

It is needless to mention that in the event the compensation

amount is enhanced, the amount already received may be adjusted

towards such enhanced compensation. However, in the event of

affirmation of the award of the collector, the claimant would be

directed to refund the said amount.

In view of the remand, all the parties shall be entitled to

adduce fresh evidence and on the basis of such fresh evidence, the

learned Trial Court shall rewrite the judgment.

The appeal is, accordingly, disposed of.

Urgent photostat certified copy of this order, if applied for,

be supplied to the parties upon compliance of all requisite

formalities.

(Siddhartha Roy Chowdhury, J.) (Soumen Sen, J.)