Land Acquisition Collector vs Sri Akshay Kumar Khamrai
2022 Latest Caselaw 7451 Cal

                     IN THE HIGH COURT AT CALCUTTA
                               Civil Appellate Jurisdiction
                                  APPELLATE SIDE

Present:

The Hon'ble Justice Tapabrata Chakraborty
                   &
The Hon'ble Justice Raja Basu Chowdhury


                                            F.A. 39 of 2019

                                     Land Acquisition Collector
                                               versus
                                     Sri Akshay Kumar Khamrai.



For the Appellant          :         Mr. Supratim Dhar,
                                     Mr. Dhananjay Nayak.


For the Respondent         :         Mr. Sudhakar Biswas,

Mr. Sukanta Das.

Hearing is concluded on    :         24th August, 2022.



Judgment On                :         10th November, 2022.



Raja Basu Chowdhury, J. :

1. The present appeal has been filed challenging the judgment and

decree dated 15th September 2016 passed by the Court of the learned

Additional District Judge, 5th Court, Paschim Midnapore in L.A. Case No.

20 of 2010.

2. Origin of the instant lis dates back to 26th November 1979, when two

notices under section 3(1) of the West Bengal Land (Requisition and

Acquisition) Act, 1948 (hereinafter referred to as Act II 1948) were issued

and forwarded to the respondent. The said notices were in Form 1 and

the respondent was required to deliver possession of the land as

described in such notices on 4th December, 1979 (hereinafter referred to

as the said notices). As would appear from the above, the plots of land

were requisitioned by the State and possession thereof was taken over on

4th/5th December, 1979. Although it would be apparent from the

requisition notices, that the plots of land were requisitioned for the

purpose of establishing Milk Chilling Plant, yet the land was not

acquired until the time hereinafter mentioned. No steps were taken by

the Land Acquisition Collector to initiate any acquisition proceeding

under the provisions of Act II 1948. In fact, for about two decades, no

steps were taken to acquire the aforesaid land, by issuing any notice

under section 4(1) of Act II 1948.

3. With the passage of time Act II 1948, which was a temporary Act was

re-enacted and extended from time to time to give a fresh lease of life to

the same. However, after 1997, the Act II 1948 lost its validity. By such

time, however, several requisition proceedings had been initiated,

acquisition in respect whereof, was either yet to commence or the same

was not complete. Thus, to overcome the aforesaid incongruous

situation, the Land Acquisition Act of 1894 was amended by West Bengal

Act No. VII of 1997 and Sub-sections 3A and 3B were inserted. This

enabled the state to overcome the problem of losing pending requisition

proceedings, the same also afforded an opportunity to the state to

acquire the same. In the present case the aforesaid requisition

proceedings under Act II of 1948, were subsequently converted to an

acquisition proceeding under Land Acquisition Act 1 of 1894 (hereinafter

referred to as the Act I 1894) by issuing notices under section 3A and 3B

of Act I 1894.

4. Records would reveal that such acquisition proceedings did not

ultimately culminate in an Award and stood lapsed. Still later, on a writ

application filed by the respondent, which was registered as W.P. No.

7332 (W) of 2004, this Hon'ble Court by an order dated 10th September,

2004, having found that the land in question was utilized by the

requiring body, directed that the Land Acquisition Collector to issue a

notice under section 4 of Act I 1894 and to ascertain compensation

within a period of three months from the date of publication of notice

and after serving notices on all interested persons.

5. Pursuant to the aforesaid direction, Land Acquisition case was

initiated for acquisition of 2.45 acres and 0.25 acres of land respectively

in Mouza Durlavgunj and Bila respectively, P.S. Garhbeta, District

Paschim Midnapore, by issuing notification under section 4(1) of the Act

I of 1894, publication whereof was made on 3rd November 2004.

6. Records would further reveal that in the land acquisition proceedings

subsequent to publication of declaration under section 6 of Act I 1894,

the same was renumbered as LA Case No 3 of 2004-05 and the L.A.

Collector passed an Award on 3rd July, 2007, under section 11 of Act I of

1894. Notice of Award under Section 12(2) of Act I 1894, was duly

served on the respondent.

7. The respondent had received the compensation awarded by the

Collector, under protest and had thereafter by written application

addressed to the Collector sought for reference of the matter, for

determination of compensation by Court, in terms of section 18 of Act I

1894. On contested hearing by a judgment and decree dated 30th August,

2011 passed by the learned Additional District Judge, 5th Court,

Paschim Midnapore in L.A. Misc. Case No. 20 of 2010 the compensation

payable in favour of the respondent was determined.

8. A review application, being J. Misc. Case No. 10 of 2011, was filed by

the respondent seeking review of the aforesaid judgment and decree

dated 30th August, 2011, inter alia, on the ground that the learned Court

ought to have directed the L.A. Collector to pay interest @ 9% per annum

for one year from the date of possession i.e. 5th December, 1979 and

thereafter @ 15% on the excess amount of compensation.

9. By a judgment and order dated 6th February, 2012 the learned Court

allowed the review application on contest and partly modified the

judgment dated 30th August, 2011, thereby directing the L.A. Collector to

pay interest in terms of section 28 of Act I 1894, on the excess amount

of compensation including solatium as awarded by the Court at the rate

of 9% per annum, from the date on which the Collector had taken

possession of the land in question, for the period of one year and at the

rate of 15% per annum, from the date of expiry of the period of one year,

till payment of such excess amount of compensation in Court.

10. Records would reveal that the appellant had challenged both the

judgment and decree dated 30th August 2011 passed by the learned

Additional District Judge, 5th Court, Paschim Midnapore in LA Misc.

Case No. 20 of 2010 as also the order dated 6th February, 2012 passed in

J. Misc. Case No. 10 of 2011 arising out of L.A. Misc. Case No. 20 of

2010 by which the judgment and order dated 30th August, 2011 was

modified. The same was registered as FAT 386 of 2012. Records would

further reveal that a cross appeal was also filed by the respondent which

was registered as COT 21 of 2013.

11. By judgment and order dated 12th September 2014 a Coordinate

Bench of this Court observed that the learned Additional District Judge,

5th Court at Paschim Medinipur, while determining the compensation did

not take into account the classification of the land and the issue needs

further evidence. As such, the matter was remanded, so as to afford an

opportunity to adduce evidence with regard to the classification of land.

The question whether the landowner is entitled to valuation as on the

date of notification under section 4 of Act I 1894 and also compensation

for the period from 5th December, 1979 was kept open, to be decided in

accordance with law, with a further direction upon the learned trial

Court to readmit the matter under its original number and to proceed

and try out the same.

12. Consequent upon the same the matter was heard by the learned

Court below and by judgment and decree dated 15th September, 2016,

passed in L.A. Case No. 20 of 2010, the Learned Additional District

Judge, 5th Court, Paschim Medinipur allowed the L.A. case and the J.

Misc. Case upon ascertaining the classification of land and by

determining the compensation payable to the respondent.

13. Being aggrieved, the appellant has preferred the instant appeal which

was registered as F.A. No. 39 of 2019. At the time of admission of the

appeal, the appellant pursuant to directions passed by a coordinate

bench of this Hon'ble Court dated 16th January, 2019, had deposited a

sum of Rs 40,00,000/- (Rupees Forty lakhs) only with the Registrar

General of this Hon'ble Court.

14. Mr. Dhar, learned advocate appearing in support of the appeal

submits that the learned Court below did not segregate the amount of

compensation payable in respect of different classes of land. The learned

Judge had also not taken note of the largeness of the land while

determining the compensation payable to the respondent; the rates at

which the smaller plots are sold cannot be the criteria for determining

market value of land in respect of larger plots. No reasoning has been

given by the learned Judge to arrive at a figure of Rs. 75,000/- per

decimal. Drawing our attention to the evidence-in-chief and cross-

examination of the PW1, he submits that the plots of land in question

were vacant at the time of acquisition. Such fact has not been

considered at all by the learned Judge.

15. Placing reliance upon the judgment delivered in the case Shaji

Kuriakose & Anr. -Vs.- Indian Oil Corporation Ltd. & Ors. reported in

(2001) 7 SCC 650, he submits that while fixing market value of the

acquired land, comparable sales method of valuation is preferred, than

other methods of valuation of land. The factors which are to be

considered for determining valuation have been set forth in the said

judgment. Drawing our attention to paragraph 3 of the aforesaid report,

it is submitted that the land covered by sales must be smaller similar to

the acquired land and the size of plots of land covered by sales be

comparable to the land acquired. The learned Judge has not taken into

consideration the aforesaid factors. On such ground itself the judgment

impugned should be set aside.

16. He argues that the learned Judge had also erred in awarding excess

amount of compensation in the form of interest from the date when

possession was taken. The learned Judge ought to have awarded

interest from the date of issuance of notification under Section 4 of Act I

1894 and not from the date on which possession had been taken. He

further argues, if the claimant is entitled to market value from the date

of notice under section 4 of Act I 1894, in such case the claimant should

not be entitled to interest from any date, anterior to such date when the

aforesaid notification was published.

17. Placing reliance upon the judgment delivered in the case of Siddappa

Vasappa Kuri & Anr. -Vs.- Special Land Acquisition Officer & Anr.,

reported in (2002)1 SCC 142, he submits that starting point for

computing compensation under Section 23(1-A) of Act I 1894 @ 12% per

annum on the market value, commences on and from the date of

publication of the notification under section 4(1) of Act I 1894 and the

same continues up to the date of Award or taking over possession

whichever is earlier. The Hon'ble Supreme Court has made it clear that

determination of compensation for the aforesaid purpose would at best

be limited to the date of publication of notice under section 4 of Act I

1894 and not prior thereto. As such the learned Judge had erred in

awarding interest from the date of possession, which is prior to the

notification issued under Section 4 of Act I 1894.

18. Reliance has also been placed upon the judgment delivered in the

case of R.L. Jain -VS.- DDA & Ors., reported in (2004)4 SCC 79. In the

said case, the Hon'ble Supreme Court in paragraphs 17 and 18 of such

report had taken a view that the landowner is not entitled to interest

under the Act I 1894 from the date of possession for the purpose of

determination of compensation, if such possession is taken before the

preliminary notification. He argues that the judgment impugned is

contrary to law and should be set aside.

19. Per Contra Mr. Biswas, learned advocate appearing for the

respondent, draws our attention to exhibit nos. 7 to 11 and 14 & 15,

pages 10 & 11, Part-II of the paper book and he takes us through record

of rights to identify the classification of land. He then takes us to the

several exhibits, the sale deeds and submits that the aforesaid sale deeds

are comparable to the land acquired and have been rightly taken into

consideration by the learned Judge, for deciding the market value of

land.

20. It is submitted, that admittedly, possession of land had been taken

over in the year 1979. The order dated 10th September, 2004 by virtue

whereof the instant acquisition proceedings were initiated had not been

challenged by the appellant. The same would demonstrate that the land

had been utilized by the appellant long back, though the lands remained

un-acquired. Consequent upon direction passed by the Hon'ble Court

on 10th September, 2004 in W.P. No. 7332 (W) of 2004, a notification

under Section 4 of Act I 1894 had been published. According to Mr.

Biswas, the claimant ought to be awarded additional interest @ 15% per

annum on the amount awarded by the Land Acquisition Collector, from

the date of taking over possession and not from the date of publication of

notification under Section 4 of Act I 1894. The issue as regards right to

receive compensation in the form of damages for the period when

possession was actually taken over, till the period of publication of

notification under Section 4 of Act I 1894 is no longer res-integra. Relying

upon the judgment delivered in the case of Balwan Singh & Ors. -Vs.-

Land Acquisition Collector & Anr., reported in AIR 2016 SC 1565, he

submits that considering paragraph 18 of the judgment in R. L. Jain

(Supra) the Hon'ble Supreme Court in the case of Madishetti Bala

Ramul (dead)1 LRS -Vs.- Land Acquisition Officer, reported in (2007)

9 SCC 650 took a view that the additional interest @ 15% per annum on

amount awarded by the Land Acquisition Collector, to be a reasonable

amount to be paid to the claimant for the period from the date

dispossession till the date of notification under Section 4(1) of the Act I,

1894. The above view had also been accepted in the case of Tahera

Khotoon & Ors. -Vs.- Revenue Divisional Officer/Land Acquisition

Officer & Ors., reported in (2014) 13 SCC 613. Accordingly, he

submits that the claimant should be awarded 15% interest as damages

for the period for which he had remained out of possession till the date of

issue of notification under Section 4 of the said Act I, 1894.

21. He submits that the judgment delivered in the case of Shaji

Kuriakose & Anr. -Vs.- Indian Oil Corporation Ltd. & Ors., reported in

(2001)7 SCC 650 and the judgment delivered in the case of Siddappa

Vasappa Kuri & Anr. -Vs.-Special Land Acquisition Officer & Anr.,

reported in (2002)1 SCC 142, are otherwise distinguishable on facts and

have no bearing to the instant case. Mr. Biswas further submits that

this Hon'ble Court in exercise of its power under Order 41 Rule 33 has

ample authority and jurisdiction to pass such decree or orders as are

required to be passed. In support of the aforesaid proposition, he places

reliance upon the judgment delivered in the case of K. Muthuswami

Gounder -Vs.-Palaniappa Gounder reported in AIR 1998 Supreme

Court 3118.

22. We have heard learned advocates appearing for the respective

parties. We have considered the lower Court record, exhibits, pleadings

of the parties and other available materials on record. We find that

notwithstanding issuance of two several requisition notices under

Section 3(1) of Act II 1948 and despite taking over possession of property

on 5th December, 1979, no steps had been taken by the Land Acquisition

Collector to acquire such property during the tenure of the aforesaid Act

II 1948. It was only at the intervention of the Hon'ble Court in W.P. No.

7332 (W) of 2004, that a fresh proceeding for acquisition of the land

belonging to the respondent, was initiated, which had already been

utilized by the requiring body. It would appear from the aforesaid order

dated 10th September, 2004, that the respondent up to that stage, had

been deprived of its property without any recourse to law. Consequent

upon the order passed on 10th September 2004 in W.P. No. 7332 (W) of

2004 as aforesaid, a notification under Section 4 of the Act I 1894 was

published and L.A. Case 3 of 2007 was initiated. We have been able to

ascertain from the Lower Court record that the LA Collector, Paschim

Midnapore had identified 2.60 acres of land in Mouza Bila and

Durlabhgunge covered under L.A. Case No. 3 of 2004-05 to be a Rice Mill

while .25 acres of land in Mouza Durlabhgunge to be partly Rice Mill and

partly (Orchard). The computation of market value appears to have been

made based on the classification declared therein. We find that the

respondent had accepted the awarded compensation issued by the

Collector on 3rd July 2007, under protest and since thereafter had made

a reference under Section18 of the Act I, 1894. Originally, by a judgment

and decree dated 30th August, 2011 the learned Court below had

determined the excess compensation payable to the respondent to be

Rs.23,95,965/-(Rupees Twenty-Three Lakhs Ninety-Five Thousand Nine

Hundred and Sixty-Five) only. A review application appears to have been

filed, which was allowed by a judgment and decree dated 6th February,

2012, thereby directing that the respondent shall be entitled to interest

payable under Section 28 of Act I 1894. The learned Judge, by the

aforesaid judgment directed that the interest shall be computed at the

rate of 9% from 5th December 1979, when possession had been taken, for

a period of one year and subsequently @ 15% from the expiry of such

period of one year, till payment of excess amount of compensation in

Court.

23. Being aggrieved, the appellant had preferred an appeal, which was,

however, remanded back to the learned Court below to ascertain the

classification of land by keeping the other points open. Since then, the

respondent, as claimant, had led evidence. Ultimately by detailed

judgment and decree dated 15th September, 2016, the learned Court

below had inter alia, concluded by placing reliance upon the exhibit nos.

5 and 6 being the relevant record of rights, that 36 decimals in plot no.

81/555 is a rice mill and plot no. 81 measuring 159 acres is Sali/patit

i.e. partly agricultural land and partly fallow land and the classification

and nature of plot no.213/466 measuring 52 decimals is orchard and

the land measuring 3.24 acres is mill. Since the parties did not challenge

the record of rights, the learned Judge concluded that the classifications

of some portion of the plots are Sali and some are patit (fallow), while

some are rice mill/bastu while certain other portions are orchard/Mill.

The learned Judge had also taken into consideration the evidence led by

Sandip Kumar Bose, Ramsundar Molla, Subrata Chattopadhyay and

Swarup Ranjan Ghosh and the documentary evidence in the form of sale

deeds which were exhibited. The appellant, however, did not lead any

oral evidence. While taking note of both documentary as well as oral

evidence in respect of transfer of land, which were close to the date of

notification published under section 4 of Act I 1894, the learned Judge

concluded, that the claimant had been able to prove market value of the

land ranging between Rs.53000/- to Rs.80000/- per decimal. While

ascertaining the market value of the land as aforesaid, the learned Judge

had also taken note of the fact, that rates at which small plots are sold

cannot be a safe criterion for ascertaining the market value of the land

and for such reason, did not take into consideration the land purchased

by PW5. The learned Judge ultimately while keeping in mind the

classification of land, valuation of the land, transfer in the locality,

possession and documents relating to the land filed by both sides

determined and assessed Rs.75,000/- per decimal to be the market

value of the land acquired. The learned Judge further awarded 12% on

such market value from the date of taking over possession of land to the

date of Award of the Collector as per section 23(1A) of Act I 1894 (West

Bengal Amendment) Act, 1997. The learned Judge further awarded the

additional compensation @ 30% on the market value as per sub-section

2 of section 23 of Act I, 1894 as solatium and further provided that in

default of payment within two months by the LA Collector the

respondent shall be entitled to the interest @ 10% per annum over and

above the balance amount from the date of judgment till payment of full

awarded amount.

24. We find that the learned Judge had not segregated the market value

as per classification of land, however, the same does not vitiate the

determination of excess compensation for the following reasons. We find

that out of the two plots acquired, plot no 81/555, 36 decimals are

recorded as rice mill while the rest are recorded as sali land. In so far as

plot no 213/466 only 52 decimals are recorded as orchard while 3.24

acres are recorded as rice mill. The respondent only has interest, to the

extent of 11.17 decimals out of 2.60 acres of land acquired. The record

of rights reveals that the land forming subject matter of acquisition was

previously held by a rice mill (Bangalaxmi rice mill). It is thus obvious

that the land that was acquired, formed part of a developed land and was

more likely, that there was less chance of variation in value of the land

so acquired. As such it was not necessary for the learned Judge to

provide for individual market value as per classification of land. We find

from the judgment impugned that the learned Judge has not awarded

Rs.80,000 per decimal, although the respondent had been able to prove

market value of land up to Rs.80,000/- per decimal. We are of the view

that the learned Judge obviously factored in the minor variations on

account of the classification of land, while determining market value. It

is well settled that the Court may make some guess work before it could

arrive at a final determination, which is in consonance with statutory law

as well as principal stated in judicial pronouncements. The principal is

only intended to bridge the gap between calculated compensation and

the actual compensation, that the claimant may be entitled to receive as

per the facts of their case, to meet ends of justice.

25. More often, than not, it is not possible to fix the compensation with

exactitude or with arithmetic accuracy. It is in such circumstances an

estimate is made based on mixture of calculations. We find that

sufficient evidence has been led in the instant case on behalf of the

respondent to prove market value of the land. On the other hand, the

appellant has not led any oral evidence. We also find from evidence

adduced by the parties, that in the year 1979 construction of milk

chilling plant was started at the site were Bangalakhmi Rice Mill, was

situated, as such we do not find any irregularity on the part of the

learned Judge in not determining market value of land for the individual

classification of land.

26. Propositions of law as laid down in the judgments cited by the

appellant are well settled. The judgment reported in the case of Shaji

Kuriakose & Anr. (Supra) and Siddappa Vasappa Kuri & Anr. (Supra)

are otherwise distinguishable from the facts of this case. A little variation

in facts may alter the very basis of a judgment. The judgment delivered

in the case of R. L Jain (Supra), however, takes into consideration the

peculiar circumstance of a case, where a landowner is dispossessed prior

to issuance of notification under section 4(1) of the Act I 1894. The

Hon'ble Supreme Court has categorically provided, that in cases where

the possession is taken over prior to issuance of notification under

section 4(1) of Act I, 1894, it would be just and equitable for the Collector

to determine rent or damages for use of the property for the period the

government retains possession of the same, to which the landowner is

otherwise entitled to. It is also well settled that Order 41 Rule 33

enables the appellate Court to pass any decree or order which ought to

have been made in the circumstances even if such decree would be in

favour of the parties who have not filed any appeal [See the judgment

delivered in the case of K. Muthuswami Gounder (Supra)].

27. We find that the judgment delivered in the case of R.L. Jain (Supra)

had been considered by the Hon'ble Supreme Court in the case of

Balwan Singh & Ors. (Supra) and it had been held that payment of

interest for the period from the date of dispossession to the date of

notification under section 4(1) of Act I 1894, is no longer res-integra.

Similar such view has been taken in the case of Madishetti Bala Ramul

(Dead)1 LRS (Supra) and in all such cases additional interest @ 15% per

annum on the amount awarded by the Collector, had been directed to be

paid for the period between date of dispossession and the date of

notification under section 4(1) of Act I 1894. There has thus been a

consistent view taken by the benches after R.L. Jain (Supra) that the

claimant can be compensated @ 15% from the date of dispossession till

the date of notification under section 4(1) of Act I 1894 on the basis of

the market value so ascertained.

28. Applying such proposition of law to the facts of the case, we are of

the opinion that it would be appropriate to direct the Collector to make

payment of compensation by awarding an additional interest @ 15% per

annum instead of 12% as directed, on the market value of land on and

from the date possession of the land was taken over till the date of

issuance of notification under section 4 of Act I 1894. The impugned

judgment and decree are accordingly modified. The other directions

contained in the said judgment and decree shall remain unaltered.

29. The appellant is directed to make payment of the balance amount

along with interest to the respondent in terms of the judgment and

decree of the learned Court below, as modified hereinabove.

30. We further direct that the Registrar General shall cause the sum

lying with him/her to the credit of the aforesaid appeal be immediately

released in favour of the respondent along with accrued interest thereon

after deducting commission payable, if any. The respondent shall be

entitled to recover the aforesaid commission amount from the appellant.

31. With the aforesaid direction and observations, the appeal is

disposed of.

32. The department is directed to draw up the decree, accordingly.

33. Urgent Photostat copy of this judgment, if applied for, be made over

to this parties, as expeditiously as possible, upon compliance of

formalities in that regard.

(Raja Basu Chowdhury, J.) (Tapabrata Chakraborty, J.)