State Of West Bengal And Ors vs Shree Gouri Shankar Jute Mills Ltd
2022 Latest Caselaw 7346 Cal

              IN THE HIGH COURT AT CALCUTTA
                  Civil Appellate Jurisdiction
                         Appellate Side


Present:-   Hon'ble Justice I. P. Mukerji


                       FA No. 111 of 2016

                 State of West Bengal and Ors.
                              Vs.
              Shree Gouri Shankar Jute Mills Ltd.
                             With
                       C.O.T. 10 of 2016

              Shree Gouri Shankar Jute Mills Ltd.
                              Vs.
                 State of West Bengal and Ors.



For the Appellants            :       Mr. Lalit Mohan Mahata,
                                      Mr. Supratim Dhar,
                                      Mr. Prasanta Behari Mahata, Advs.

For the respondent/

Cross objector                :       Mr. Debayan Bera,
                                      Mr. Santi Prasad Chakraborty, Advs.


Judgment on                   :       04.11.2022


I. P. MUKERJI, J.-

The above appeal was heard by a division bench comprising of the

Hon'ble Mr. Justice Harish Tandon and the Hon'ble Mr. Justice A.

Gangopadhyay. Their lordships delivered separate judgments on 19th

August, 2020. They differed. Basically, the difference was on two

points. Whether the respondent/cross objector was entitled to get

compensation in the form of interest from 4th November, 1959 to the

date of the notification under Section 4 of the Land Acquisition Act,

1994 i.e. 21st July, 2006? Secondly, whether for the purpose of

valuation the subject land was to be valued at Rs.42,42,424/- per

acre or Rs.35,79,973.66/- per acre?

Whereas Mr. Justice Tandon was of the view that compensation was

payable for the aforesaid period, Mr. Justice Gangopadhyay opined

that compensation was not payable. Mr. Justice Tandon valued the

land at Rs.42,42,424/- per acre whereas according to Mr. Justice

Gangopadhyay it was Rs.35,79,973.66/- per acre.

These points of difference having arisen, the said bench referred the

matter to the Hon'ble the Chief Justice for an appropriate order.

By his order dated 10th March, 2021, the Hon'ble the Chief Justice

referred the matter to me as the third judge.

Being the third judge, my jurisdiction as I perceive it, is either to

agree with the view of Mr. Justice Tandon or with the view of Mr.

Justice Gangopadhyay on each of the above two issues. By the

nature of the reference, there is no scope of my partly agreeing with

one view and partly not or expressing a third view in the matter.

The facts are important and need to be stated shortly but sufficiently.

The state government had proposed to acquire the subject shali and

danga land at Mouza Noapara, P.S. - Noapara under the West Bengal

Land Development Planning Act, 1948. The purpose was to create a

colony for squatters who were occupying the area as immigrants from

erstwhile East Pakistan. The proposal was to name it Noapara

Scheme-II Post Squatters Colony.

The material date is 4th November, 1959 when the government is said

to have taken possession of the land.

It appears that proceedings under the said Act were not undertaken

and the land was left like that with the Refugee Relief and

Rehabilitation department of the government.

After court proceedings were initiated by the respondent/cross

objector, a fresh proceeding for acquisition under Section 4 of the

Land Acquisition Act, 1894 was started. On 21st July, 2006 the

notification under Section 4 of the said Act was published. On 20th

August, 2008 the Collector published his award.

The respondent/cross objector did not accept the award and

challenged the same by way of a reference case before the learned

Land Acquisition Judge, 3rd Additional District Judge, Barasat. The

learned court delivered its judgment on 14th November, 2014

enhancing the valuation of the acquired land. He also allowed

interest @ 9% per annum on the total amount of compensation for 1

year from the date of taking possession and thereafter @ 15% per

annum till payment. The court assessed the valuation at

Rs.34,03,105/- per acre by the average method.

The State was not satisfied with this award and filed an application

for review which was dismissed by the court on 12th March, 2015.

Thereafter, the judgment and decree of the learned District Court

dated 14th November, 2014 was appealed against before this court.

One issue can be resolved without much difficulty.

It relates to the period for which the respondent/cross objector would

get interest on the compensation received by them.

At the outset, I may note that the date of taking possession of the

subject land by the government was admittedly 4th November, 1959.

Mr. Justice Tandon has noted that in his judgment. During the

course of arguments before me, it was not the case of the appellant

State that they had not taken possession of the property on the

aforesaid date or had taken its possession at a later date or not taken

possession at all. This recording of fact by the learned judge was not

disputed by the State during the course of its arguments.

I do not know on what basis Mr. Justice Gangopadhyay has recorded

in sub-paragraph 'f' of Paragraph 15 of his judgment and order that

the respondent/cross objector could not prove that possession of his

land was taken by the government on the aforesaid date. By citing

proviso (a) of Section 8 of the 1948 Act, the court observed that only

after taking possession of the land did it vest in the government. In

sub-paragraph 'h' of the same paragraph, his lordship observed that

"the possession of the government was only nominal and the

respondent was dispossessed physically even before the acquisition

proceeding was initiated under the 1948 Act." It further noted that

the declaration under the 1948 Act was made in 1958 before coming

into effect of Section 11A of the Land Acquisition (Amendment) Act,

1984 from 24th September, 1984. According to Section 11A of Act 1,

if the declaration has been made before commencement of the

amendment, the award would have to be made within a period of 2

years from such date. Since no award was made within this period,

the proceeding lapsed on expiry of 23rd September, 1986.

A new acquisition proceeding was started in 2006 which was not a

continuation of the old proceeding. In a new proceeding

compensation for taking over possession by the government for an

old proceeding could not be claimed by anybody. Hence, according to

the learned judge, the respondent/ cross objector was not entitled to

any interest.

When an issue is raised the party alleging a fact is cast with the

burden of proving it. This burden continues as long as the assertion

of fact is denied by the opposite party. If it is no longer denied no

issue survives. On the basis of the admission made by the opposite

party that it was not disputing an assertion of fact, the court can

safely proceed as if the fact asserted was proved. In this case at no

stage the government denied that they had taken possession of the

subject land on 4th November, 1959. Hence, there was no obligation

on the part of the respondent/cross objector to prove that the

government had taken possession of it on that date. The records

evidencing taking of possession by the government are always in its

possession and within their special knowledge under Section 106 of

the Evidence Act. If it had to prove that it had not taken possession

of the land on that date, the onus was on it and not on the

respondent/cross objector to prove it. The government has failed to

discharge that onus.

The broader basic principle for grant of compensation and interest on

compensation was declared by the Supreme Court in R.L. Jain (D)

By LRS vs. DDA and Ors. reported in (2004) 4 SCC 79 in the

following terms:-

"17. Shri Dave, learned counsel for the appellant has also placed strong reliance on Satinder Singh v. Umrao Singh wherein the question of payment of interest in the matter of award of compensation was considered by this Court. In this case the initial notification was issued under Section 4(1) of the Land Acquisition Act, 1894 but the proceedings for acquisition were completed under East Punjab Act 48 of 1948. The High Court negatived the claim for interest on the ground that the 1948 Act made no provision for award of interest. After quoting with approval the following observations of the Privy Council in Inglewood Pulp and Paper Co. Ltd. v. New Brunswick Electric Power Commission

"upon the expropriation of land under statutory power, whether for the purpose of private gain or of good to the public at large, the owner is entitled to interest upon the principal sum awarded from the date when possession was taken, unless the statute clearly shows a contrary intention"

the Bench held as under:

"... when a claim for payment of interest is made by a person whose immovable property has been acquired compulsorily he is not making claim for damages properly or technically so-called; he is basing his claim on the general rule that if he is deprived of his land he should be put in possession of compensation immediately; if not, in lieu of possession taken by compulsory acquisition interest should be paid to him on the said amount of compensation".

17.1. The normal rule, therefore, is that if on account of acquisition of land a person is deprived of possession of his property he should be paid compensation immediately and if the same is not paid to him forthwith he would be entitled to interest thereon from the date of dispossession till the date of payment thereof. But here the land has been acquired only after the preliminary notification was issued on 9-9-1992 as earlier acquisition proceedings were declared to be null and void in the suit instituted by the landowner himself and consequently, he was not entitled to compensation or interest thereon for the anterior period.

18. In a case where the landowner is dispossessed prior to the issuance of preliminary notification under Section 4(1) of the Act the Government merely takes possession of the land but the title thereof continues to vest with the landowner. It is fully open for the landowner to recover the

possession of his land by taking appropriate legal proceedings. He is therefore only entitled to get rent or damages for use and occupation for the period the Government retains possession of the property. Where possession is taken prior to the issuance of the preliminary notification, in our opinion, it will be just and equitable that the Collector may also determine the rent or damages for use of the property to which the landowner is entitled while determining the compensation amount payable to the landowner for the acquisition of the property. The provisions of Section 48 of the Act lend support to such a course of action. For delayed payment of such amount appropriate interest at prevailing bank rate may be awarded."

This judgment was referred to and relied upon by the Supreme Court

in Madishetti Bala Ramul (Dead) by LRS vs. Land Acquisition

Officer reported in (2007) 9 SCC 650, Revenue Divisional Officer,

Kurnool District vs. M. Ramakrishna Reddy (Dead) by LRS

reported in (2011) 11 SCC 648, Tahera Khotoon and Ors. vs.

Revenue Divisional Officer/Land Acquisition Officer and Ors.

reported in (2014) 13 SCC 613, Balwan Singh and Ors. vs. Land

Acquisition Collector and Anr. reported in (2016) 13 SCC 412. In

these cases, the Supreme Court has very emphatically said that

where possession was taken before notification, the owner of the land

would be entitled to compensation by way of interest from the date of

dispossession till the date of the notification.

On this issue, I concur with brother Tandon.

As far as valuation of the land is concerned, I have gone through the

judgment and order of the learned District Judge dated 14th

November, 2014. For assertion of the market value of the land in

question, sale deeds executed between 2003 and 2006, produced by

the parties were considered. There were four sale deeds which

according to the learned District Judge showed abnormally high and

low consideration. They were not considered. The learned judge very

fairly recorded in his order that the exact location of the lands in

respect of which the transactions were being considered and their

proximity to the land in question were not before him. He went by the

average method to determine the valuation.

Mr. Justice Gangopadhyay remarked that the principle of valuation

adopted by the learned District Court was correct. Nevertheless, the

learned court below had taken into consideration sale deeds which

were neither produced nor marked as exhibits before it. On the basis

of three deeds being Exhibits 5, 6 and 8 and ignoring the other seven

deeds including the said abnormally high and low sale transactions

which were not proved and marked as exhibits before the LA

Collector or the court, Mr. Justice Gangopadhyay came to the

conclusion that the valuation ought to be Rs.35,79,973.66/- per

acre.

Mr. Justice Tandon has remarked "I do not find any reason for not

accepting the price shown in Exhibit 5 to be the fair market value of

the property" without taking into account the factual finding of the

learned district court that the location of the land, its proximity to

the land in question, its nature and quality were not established

before the court.

So, in my opinion it was much safer to take the average method as

adopted by Mr. Justice Gangopadhyay in coming to determine the

valuation of the subject land in question. I need not discuss the

pronouncements of the Supreme Court with regard to valuation. The

guidance given by the court in Chimanlal Hargovinddas vs. Special

Land Acquisition Officer, Poona and Anr. reported in AIR 1988 SC

1652, Bhagwathula Samanna and Ors. vs. Special Tahsildar and

Land Acquisition Officer, Visakhapatnam Municipality,

Visakhapatnam reported in AIR 1992 SC 2298, Karntaka Urban

Water Supply and Drainage Board and Ors. vs. K.S.

Gangadharappa and Anr. reported in (2009) 11 SCC 164, Mehrawal

Khewaji Trust (Registered), Faridkot and Ors. vs. State of Punjab

and Ors. reported in (2012) 5 SCC 432, Ramanlal Deochand Shah

vs. State of Maharashtra and Anr. reported in AIR 2013 SC 3452,

Major General Kapil Mehra and Ors. vs. Union of India and Anr.

reported in (2015) 2 SCC 262 was very correctly followed and

applied by both the learned judges.

In the facts and circumstances of the case, I would support the

average method adopted by Mr. Justice Gangopadhyay.

In those circumstances, I answer the questions referred to me in the

following manner:-

1) On the issue of grant of interest, I agree with the view of Mr.

Justice Tandon.

2) On the question of valuation, I concur with the view of Mr.

Justice Gangopadhyay.

The majority view 2:1:- (i) on the question of grant of interest, the

respondent/ cross objector would be entitled to 15% interest from the

date of dispossession i.e. 4th November, 1959 till 21st July, 2006,

being the date of notification under Section 4 of the said Act; (ii) The

entitlement of the respondent/cross objector to compensation would

be Rs.35,79,973.66/- per acre for the subject land.

The appeal is disposed of. Any connected application is also disposed

of.

Urgent certified photo copy of this judgment and order, if applied for,

be furnished to the appearing parties on priority basis upon

compliance of necessary formalities.

(I. P. Mukerji, J.)