Calcutta High Court (Appellete Side)
State Of West Bengal vs Dilip Kumar Jaiswal on 3 August, 2023
1
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon'ble Justice Soumen Sen
And
The Hon'ble Justice Siddhartha Roy Chowdhury
FA 380 of 2009
State of West Bengal
vs.
Dilip Kumar Jaiswal
with
COT 3975 of 2006
State of West Bengal
vs.
Dilip Kumar Jaiswal
with
FAT 651 of 2018
Heavy Engineering Corporation Limited
vs.
Dilip Kumar Jaiswal & Ors.
For the appellant in FAT 651 of 2018
& for the respondent no. 9 in
FA 380 of 2018 : Mr. Sabyasachi Chowdhury, Adv.
Ms. Urmila Chakraborty, Adv.
Mr. Amit Meharia, Adv.
Ms. Paramita Banerjee, Adv.
Ms. Subika Paul, Adv.
Ms. Amrita Das, Adv.
For the respondent nos.2-8 in
FAT 651 of 2018 & for the
respondent nos.1-8 in
FA 380 of 2018 & appellant in
COT 3975 of 2006 : Mr. Jaydip Kar, Sr. Adv.
Mr. Aditya Kanodia, Adv.
For the State of West Bengal : Mr. Tapan Kumar Mukherjee, Ld. Addl.
GP.
Mr. Supratim Dhar, Adv.
Hearing Concluded On : 14th July, 2023
Judgement On : : 3rd August, 2023
Siddhartha Roy Chowdhury, J.: By a common judgement we propose to
dispose of two appeals and a cross-objection filed by State of West Bengal, Dilip
Kumar Jaiswal and Heavy Engineering Corporation Limited respectively
impeaching the order of learned Special L.A. Judge, 6th Court of Additional
District Judge, Alipore in L.A. Case No. 13/2000 while adjudicating a reference
under Section 18 of the L.A. Act, 1894.
Briefly stated, the first L.A. Collector, Kolkata acquired the homestead
land with a structure at premises no. 77, Park Street, Kolkata measuring about
10 cottahs 5 chittacks 24 square feet with commercial establishments on the
ground floor as per notification No. 8-L.A. (II) dated 6th November, 1989
published in part I of the Calcutta Gazette vide no. 7550 L.A. (II) dated 21st
July, 1990. The purpose of acquisition of such property was to house the office
of M/s Heavy Engineering Corporation Limited (Government of India
Enterprise) and an award was made under Section 23 (1a) of the Land
Acquisition Act, 1894. The learned Land Acquisition Collector assessed the
value of land @ of Rs. 1,41,629/- per cottahs and the structure was valued at
Rs. 20,40,826/-, 30% on the market value of the land was awarded as solatium
and additional compensation of 12% was awarded for the period commencing
from 21st July, 1990 when the declaration was made under Section 6 of the
Land Acquisition Act, 1894, to 4th January, 1991 immediately before the date
of taking possession. The said award of L.A. Collector was challenged by Dilip
Kumar Jaiswal and others, the land owners in a proceeding under Section 18
of the Land Acquisition Act, 1894.
Learned L.A. Judge considering the evidence adduced by the parties was
pleased to allow the L.A. Case No. 13 of 2000 but in part. The market price of
the acquired homestead land was assessed at Rs. 3,04,137/- per cottahs and
value of the structure was assessed at Rs. 71,38,377.60/- as on the date of
notification. In addition thereto learned L.A. Judge awarded solatium @ 30% on
the value of the land and structure less the amount paid by L.A. Collector.
Referring claimants are held to be entitled to compensation @ 12% per annum
on the entire market value of the land and structure w.e.f. 6th November, 1989
to 11th August, 1998, less the amount paid by Land Acquisition Collector. That
apart referring claimants have been awarded further compensation @ 9% for
the first year on and from the date of award or possession and, thereafter, @
15% per annum till the amount is paid in full.
Challenging the said judgement State of West Bengal filed the appeal.
The referring claimants or the owners of the property Dilip Kumar Jaiswal and
others preferred cross-objection and Heavy Engineering Corporation Limited,
though was not impleaded as party to the proceeding before the learned L.A.
Judge, also challenged the award by preferring a separate appeal.
Mr. Tapan Kumar Mukherjee, learned Senior Counsel representing the
State of West Bengal, the appellant in F.A. 380 of 2009 with COT 3975 of 2006
submits that requiring body Heavy Engineering Corporation Limited was not
before the learned L.A. Judge to represent the case. The requiring body, Heavy
Engineering Corporation Limited is considered to be person interested within
the meaning of Sub-Section 1 of Section 18 of the Land Acquisition Act, 1894,
who is ultimately liable to make payment. Therefore, the impugned judgement
cannot be allowed to remain in force only on that score alone and the case may
be sent back on remand. It is further adverted by Mr. Mukherjee that the
learned Trial Judge while assessing the land value took the average of the
market value and also relied upon the evidence of Mr. Arun Chatterjee, who
assisted the Court in fixing the market value, however, without visiting the
property in question.
Mr. Mukherjee further submits that Section 16 of the Land Acquisition
Act, 1894 enunciates that when the Collector has made an award under
Section 11, he may take possession of the land, which shall thereupon vest
absolutely in the Government free from encumbrances. The possession was
taken by the Collector on 6th November, 1989 after publication of notice under
Section 4 of the Act. Compensation was determined based on the data
indicating the best price, the property in question would have fetched. Learned
L.A. Judge made a huge hike in the compensation but without just cause.
Challenging the judgement passed by learned L.A. Judge, Alipore Heavy
Engineering Corporation Limited (hereinafter referred to as HECL) impeaching
the said judgement of learned L.A. Court, Alipore, filed FAT 561 of 2018.
Mr. Sabyasachi Choudhury, learned Senior Counsel representing the
H.E.C.L. impeaches the impugned judgement on the ground that learned L.A.
Judge disposed of the reference petition without any notice to the appellant
Heavy Engineering Corporation Limited, the requiring body, at whose instance
acquisition had taken place. H.E.C.L. is therefore, a 'person interested' in the
land acquisition proceeding, as laid down under Sub-Section 1 of Section 18 of
the Land Acquisition Act, 1894. It is further contended that learned L.A. Judge
passed the order, relying upon the valuation report but the valuer neither
visited the site nor took any measurement of the building. He was unaware of
the condition of building as well as the occupants and the manner they have
been occupying the same.
H.E.C.L. appointed the valuer and the said valuer assessed the
valuation, following the International Valuation standards and also had taken
into consideration the available factors like amenity, facilities available in the
building, age of the building, life of the building, depreciation value and thus
assessed the market value of the building on the date of acquisition to the tune
of Rs. 29,89,016/- and determined the market rate of land to the tune of Rs.
33,46,184/-. According to Mr. Choudhury the judgement passed by learned
L.A. Judge in L.A. proceeding 13 of 2000, therefore, suffers from infirmity and
may be set aside with an order of remand or in the alternative valuation of
Sandip Kumar De may be accepted. The equivalent amount so assessed by the
valuer may be paid to the land losers out of the amount to the tune of Rs.
1,00,47,874.70/- deposited by H.E.C.L. and balance amount may be returned
to Heavy Engineering Corporation Limited.
The said valuation report has been admitted as Exhibit-X, and has been
taken on record as additional evidence under Order 41 Rule 27 of the Code of
Civil Procedure at the behest of H.E.C.L.
Mr. Kar, on behalf of the respondents/land losers, in course of hearing
submitted, without prejudice to the rights of the erstwhile owners of the
property, that the land losers/respondents, considering the age of the litigation
are agreeable to accept the valuation so determined by the chartered valuer,
but without any deduction. H.E.C.L. was requested to consider such proposal
and after due consideration H.E.C.L. refused to concede.
True it is H.E.C.L. was not notified by the learned Trial Court to attend
the reference proceeding. The definition 'a person interested' is inclusive in
nature and H.E.C.L. undoubtedly comes within the ambit of 'person interested'
as referred to in Section 18 (1) of the Land Acquisition Act. However, the
H.E.C.L. has been added as respondent in the appeal filed by the State, appeal
preferred by H.E.C.L. has been admitted and the valuation report, Exhibit X,
prepared on behalf of H.E.C.L. also has been admitted as additional evidence,
under Order 41 Rule 27 of the Civil Procedure Code. Therefore, we do not find
any reason to invoke the provision of Order 41 Rule 23 or 23A of the Code of
Civil Procedure. Rather we intend to dispose of the appeals and cross-objection
on merit.
The valuer determined the market value of the land by market approach
method to the tune of Rs. 33,06,033/- and value of the land by adopting
income approach to the tune of Rs. 33,86,334/- and the average of the two was
considered as estimated market value of the land being a sum of Rs.
33,46,184/- and the valuation of the building was assessed at Rs. 29,87,016/-.
In his report the valuer observed:- "The method chosen should not be for
finding out the highest or the lowest value but for arriving at the most
reasonable value." The valuer relied upon the judgement of this Hon'ble Court
pronounced in the case of Debi Prosad Poddar vs. C.W.T. reported in (1977)
109 ITR 760 (Cal) wherein it is held:-
"Which one of the various methods would be suitable for a particular
case must depend upon the nature of the property, the purpose for
which the property is used and several other objective factors, viz,
the time when the valuation is made, the prospect of buying and
selling in respect of the property at the relevant time and also
special feature in respect of the property if any. Taking all these
factors into the consideration it is, therefore necessary to determine
which one of the various methods will be most suitable to reach as
accurate as possible guess as to the valuation on the valuation date.
Another factor that has to be borne in mind is that such a method
should be preferred which have more objective reliable data to rely
upon than more subjective opinions. For instance, if there are more
objective data to work out respect of one method more reliable than
another, then that method for a particular land should be preferred.
If, however there is any objective reliable evidence of any
transaction of sale of land or the property similar in question or of
the same time and in approximately same time then they would,
however, provide more reliable method to follow."
In his endeavour to determine the market value adopting the market
approach the valuer took three exemplars. The first comparable was the deed
pertaining to premises no.75C Park Street, second comparable was the deed
pertaining to premises no. 71 Park Street and third comparable was the deed
pertaining premises no. 5 Wood Street. The valuer, however, did not consider
the market rate found in respect of premises no. 5 Wood Street as comparable
unit. The valuation of the land with reference to premises no. 71 Park Street
was assessed Rs. 5,10,618/- per cottah and the valuation of land in respect of
75C Park Street was arrived at Rs. 4,48,023/-. The valuer made an average of
the two comparable rates and determined the valuation of land
(5,10,618+4,48,023/2 =) Rs. 4,79,320 per cottah and taking into consideration
that the property is encumbered with old tenants and a very paltry amount is
being received as monthly rent, the valuer imbibed himself with the approach
of Valuation Officer of the Income Tax Department and gave deduction @ of 1/3
of the market value land and thus determined a sum of Rs. 3,19,547/-towards
valuation of the land per cottah and the total valuation of the land, according
to valuer comes to Rs. 33,06,033/-.
Supporting the report of the valuer Mr. Choudhury, learned Counsel for
H.E.C.L. submits that the professional valuer in absence of any statutory
guideline under the Land Acquisition Act, by adopting or following the well
settled principle of determination of value of the property, being followed in the
light of Section 269 F of the IT Act, 1961 by the Competent Authority, made
just and proper valuation, which may be accepted.
In support of his contention Mr. Choudhury, relied upon the decision of
Hon'ble Division Bench of this Court in the case of (1) Prodyut Kumar Dutta
& amp; Ors. vs. Competent Authority, Inspecting Assistant Commissioner
of Income Tax, Acquisition Range-I, Calcutta, & amp; Ors. reported in
1981 SCC OnLine Cal 272 : (1982) 134 ITR 42, (2) Subhkaran Chowdhury
& Ors. vs. Inspecting Assistant Commissioner of Income Tax,
Acquisition Range-1 & amp; Ors. reported in 1979 SCC OnLine Cal 290 :
(1979) 118 ITR 777, (3) Appropriate Authority & amp; Ors. vs. Lytton
Hotel Private Limited & amp; Ors. reported in 2003 SCC OnLine Cal 769 :
(2003) 263 ITR 498 and (4) Lytton Hotel Private Limited vs. Appropriate
Authority & amp; Ors. reported in 2008 SCC OnLine Cal 696 : (2001) 248
ITR 541.
It is adverted by Mr. Choudhury that the property in question is not free
from encumbrances. It is occupied by tenants. Therefore, the erstwhile owners
of the property cannot reasonably expect, the value, the property would have
fetched, had the same been free from encumbrances. Therefore deduction,
suggested by the chartered valuer, in his report, Exhibit-X is based not only on
sound logic but also supported by judicial wisdom on the issue of
determination of valuation and the said report may be accepted and acted
upon.
Tearing asunder the submission of Mr. Choudhury, Mr. Jaydeep Kar,
learned Counsel for the respondents submits that Land Acquisition Act, 1894
is a complete Code in itself and a statutory provision is available under Section
23 of the said Act to determine the compensation to be awarded to the land
losers. It is the statutory mandate laid down under Section 23 of the L.A. Act,
1894 that in determining the amount of compensation, the market value of the
land, is to be considered and the word 'market value' would postulate the price
of the land prevailing on the date of publication of notification. The acid test for
determining the market value of the land in question is the price which a
willing vendor might be reasonably except to obtain from a willing purchaser,
would form the basis to fix the market value. To determine the market value,
Mr. Kar submits, Court may consider the definition as laid down under Section
2 (16B) of the Indian Stamp Act.
According to Mr. Kar, the valuation so determined by the chartered
valuer of H.E.C.L, admitted into evidence Exhibit-X, may be accepted sans
deduction.
It is further contended that Section 23 of the Act does not postulate that
there would be deduction to the extent of 1/3 of the market value to determine
the just and proper compensation. According to Mr. Kar, deduction to the
extent of 1/3 may be made available but not as a matter of course. Deduction
is always based upon the situation of the land and the need for the
development, the deduction shall have to be made. Where acquired land is in
the midst of already developed land with amenities of roads, drainage,
electricity etc. then deduction of 1/3 would not be justified.
It is vehemently argued that concept of any deduction is alien to the
scheme of Land Acquisition Act, 1894. There is provision as laid down under
Section 9 of the Act to register the claim by a person having any interest in the
property before the Collector. Collector has been conferred with the power to
make apportionment of compensation under Section 11 of the Act.
Heavy Engineering Corporation Limited could have invoked the provision
of Section 9 of the Act but consciously it was not done. Therefore the deduction
on the ground that the property is not free from encumbrances is unqualified
and unwarranted.
It is adverted by Mr. Kar, learned Senior Counsel that such finding of the
valuer in this regard also factually incorrect. Our attention is drawn to the
averment of H.E.C.L. made in CAN 7078 of 2006, filed on behalf of the H.E.C.L.
in FA 380 of 2009, precisely in paragraph 2 of the said affidavit, wherein it was
adverted that at the request of West Bengal Industrial Development
Corporation Limited and at the instance of Commerce and Industries
Development, the Government of West Bengal, Department of Land and Land
Reforms inter alia acquired 0.171 acres of land under the provision of Land
Acquisition Act, 1894 and the said land vested absolutely in the State
Government in the Land Reforms Department free from encumbrances,
charges and claim.
Even in the recital of deed of lease executed on 2nd May, 2005 by and
between the Governor of West Bengal on one part and H.E.C.L. (Government of
India Enterprise), 77 Park Street, Calcutta on the other part it was recorded
inter alia "Whereas at the request of West Bengal Industrial Development
Corporation and at the instance of the Commerce and Industries Department,
Government of West Bengal, Department of Land and Land Reforms,
Government of West Bengal, inter alia acquired 0.171 acres of land comprising
within premises no. 77 Park Street, Kolkata-16, under the publication of Land
Requisition Act, 1894 is described fully in the schedules hereunder written and
the said land premises vested absolutely in the State Government in the Land
Reforms Department free from all encumbrances, charges and claim."
Therefore, according to Mr. Kar, finding of the valuer that the property was
encumbered to justify deduction to the extent of 1/3 of the value is without any
foundational fact and contrary to the provision of Section 16 of the Land
Acquisition Act. It is further adverted that the document would suggest that
the property was not only free from encumbrances, the lease deed, dated 2nd
May, 2005 further indicates that HECL was never the requiring body rather it
was post acquisition allottee.
The property admittedly is situated in the heart of the city of Calcutta.
Therefore, there is no reason to make any deduction in respect of the valuation
of the property so determined by the chartered valuer duly appointed by Heavy
Engineering Corporation Limited.
We have carefully perused the judgements relied upon by Mr.
Choudhury, learned Counsel for H.E.C.L. Both Lytton Hotel Private Limited
(supra) and Appropriate Authority & Ors. (supra) decided the issue involved
in the proceedings in the light of Section 269 UD of the Income Tax Act, 1961.
Prodyut Kumar Dutta (supra) was decided by the Division Bench of this Hon'ble
Court in the light of Section 269 J of the Income Tax Act, 1961 while in
Subhkaran Chowdhury (supra) the proceeding decided in the light of Section
269 D (1) of the I.T. Act, 1961 which empowers a competent authority to
initiate the proceeding for acquisition of immovable property. Section 269 UC
envisages restriction of transfer of immovable properties in certain manner.
While Section 269 C of the I.T. Act, 1961 envisages where competent authority
opines that the transaction of immovable property has taken place at a
consideration which is less than fair market value, the competent authority can
act in the light of Section 269 C of the Income Tax Act, 1961. Therefore, issue
involved in all these cases, relied upon by Mr. Choudhury, is absolutely
different from the issue relevant in determination of the fair and just
compensation to land losers in a proceeding under Land Acquisition Act, 1894.
Under the Income Tax Act the competent authority is authorized to assess the
value of the property to see that the fiscal interest of the State is not
jeopardized or compromised with by way of evasion of duty or tax prescribed
under the law. While under the Land Acquisition Act the object is to extend
protection to the constitutional right of the citizens to have property.
Acquisition of land is an act, falling in the purview of eminent domain of
the State. It essentially relates to the concept of compulsory acquisition as
opposed voluntary sale. It is trite to say that no person can be deprived of his
property save by the authority of law as laid down under Article 300A of the
Constitution. The provision of the Land Acquisition Act is a complete
mechanism to assess such compensation according to law. Once the land is
acquired, the person interested therein is entitled to compensation as per
provision of the Act. The compensation payable is to be computed in terms of
Section 23 and 24 of the Land Acquisition Act, 1894. The market value has to
be determined as on the date of publication of notification under Section 4 (1)
of the Land Acquisition Act, after taking into consideration what is stated
under Section 23(1), 23(1A) and 23 (2) and excluding the considerations as
stated under Section 24 of the Act. It may not always be possible to determine
such compensation with exactitude or with arithmetic accuracy. Court may
have to take recourse to similar guess work.
Therefore, in our humble opinion, the judgements relied upon by Mr.
Choudhury, learned Counsel representing the H.E.C.L is not applicable in
determining the just and fair compensation to be awarded to the land losers.
The chartered valuer also committed error in assessing the valuation after
deducting 33.33% or 1/3 of the market value relying upon the judgement
pronounced in the case of Debi Prosad Poddar (supra).
Though on behalf of the erstwhile land owners, Mr. Kar has challenged
the status of Heavy Engineering Corporation as Requiring Body and has
questioned the locus-standi of H.E.C.L. to challenge the judgement in L.A. 13
of 2000, we do not consider it relevant to dilate on that issue. H.E.C.L. has
been impleaded as respondent by the State, the appeal filed by H.E.C.L. is also
admitted and the valuation report submitted by H.E.C.L. is admitted as
Exhibit-X under Order 41 Rule 27 of the Code of Civil Procedure.
This fact, however, does not disturb the settled principle of law that when
land is acquired, what is acquired is the title of the landlord together with right
of lessee. Thus the property has been acquired free from encumbrances, as
envisages under Section 16 of the Act, which reads as follows:-
"16. Power to take possession. --
When the Collector has made an award under section 11, he may
take possession of the land, which shall thereupon 2 [vest
absolutely in the 3 [Government]], free from all encumbrances."
It is rightly argued by Mr. Kar that 'concept of deduction' from the
compensation awarded to erstwhile landlords is alien to the scheme of the act.
Section 9 of the Act enunciates:-
"9. Notice to persons interested: --
(1) The Collector shall then cause public notice to be given at
convenient places on or near the land to be taken, stating that the
Government intends to take possession of the land, and that claims
to compensation for all interests in such land may be made to him.
(2) Such notice shall state the particulars of the land so needed, and
shall require all persons interested in the land to appear personally
or by agent before the Collector at a time and place therein
mentioned (such time not being earlier than fifteen days after the
date of publication of the notice), and to state the nature of their
respective interests in the land and the amount and particulars of
their claims to compensation for such interests, and their objections
(if any) to the measurements made under section 8. The Collector
may in any case require such statement to be made in writing and
signed by the party or his agent.
(3) The Collector shall also serve notice to the same effect on the
occupier (if any) of such land and on all such persons known or
believed to be interested therein, or to be entitled to act for persons
so interested, as reside or have agents authorised to receive service
on their behalf, within the revenue district in which the land is
situate.
(4) In case any person so interested resides elsewhere, and has no
such agent the notice shall be sent to him by post in a letter
addressed to him at his last known residence, address or place of
business and 37 [registered under sections 28 and 29 of the
Indian Post Office Act, 1898 (6 of 1898)].
The State amendment inserted by State of West Bengal reads as
follows: "
(3A) The Collector shall also serve notice to the same effect on
all such persons known or believed to be interested in any land, or
to be entitled to act for persons so interested, the possession
whereof has already been taken on requisition under section 3 of the
West Bengal Land (Requisition and Acquisition) Act, 1948
(hereinafter referred to in this section as the said Act), as re-enacted
by the West Bengal Land (Requisition and Acquisition) Re-enacting
Act, 1977, and, in every such case, the provisions of sub-section (1)
of section 4, section 5, section 5A, section 6, section 7 and section 8
of this Act shall be deemed to have been complied with: Provided
that the date of notice under this sub-section shall be the date of
reference for the purpose of determining the value of such land
under this Act:
Provided further that when the Collector has made an award
under section 11 in respect of any such land, such land shall, upon
such award, vest absolutely in the Government, free from all
encumbrances.
(3B) The Collector shall also serve notice to the same effect on
all such persons known or believed to be interested in any land, or
to be entitled to act for persons so interested, the possession
whereof has already been taken on requisition under section 3 of the
said Act, and notice for acquisition of such land has also been
published under sub-section (1-a) of section 4 of the said Act, and, in
every such case, the provisions of section 4, section 5, section 5A,
section 6, section 7, section 8 and section 16 of this Act shall be
deemed to have been complied with: Provided that the date of
publication of notice under sub-section (1-a) of section 4 of the said
Act shall be the date of reference for the purpose of determining the
value of such land under this Act:
Provided further that in every such case, the Collector shall
make an award under section 11 in respect of such land only for the
purpose of payment of due compensation to the persons interested
in such land has, upon the Collector taking possession thereof,
already vested absolutely in the Government, free from all
encumbrances."
As person interested HECL could have claimed compensation and
Collector in such circumstances could have passed an award for compensation
under Sub-Section 3B of Section 9 of the Land Acquisition Act, 1894 (W.B.
amendment). No such step was taken by HECL. Having waived such right,
HECL cannot claim any deduction on the ground that the property was
encumbered. By the operation of law, when Collector makes an award, the
property vests absolutely in the Government, free from all encumbrances, in
view of Sub-Section 3A and 3B of Section 9 of the Land Acquisition Act.
This fact stands admitted even from the averment made by HECL in its
application being CAN 7078 of 2006 filed in FAT No. 1439 of 2005, for addition
of party. Property was transferred to HECL by deed of lease executed on 2nd
May, 2005, post acquisition of property.
Upon compliance of Section 9 the Collector in an appropriate case after
considering the respective interest of the persons claiming the compensation
shall make an award under his hand of (i) True area of the land (ii)
Compensation that should be allowed and (iii) The apportionment of the said
compensation among all the persons known or believed to be interested in the
land. The provisions as laid down under Section 9 and 11 of the Act are
sufficient to demonstrate that there is no scope for making any deduction in
the quantum of compensation on the ground of its being encumbered by any
person under whatever interest as has been done by the valuer. Such persons
having interest are entitled to compensation as laid down under Section 11 of
the Act. The Land Acquisition Act, 1894 is a complete Code and Section 23
Sub-Section 1 enunciates that market value of the land on the date of
publication of notification shall be taken into consideration for determining the
amount of compensation to be awarded.
The word 'land' has been defined under Section 3 of the Act as follows:-
"3 Definitions: --In this Act, unless there is something repugnant in
the subject or context,--
(a) the expression "land" includes benefits to arise out of land, and
things attached to the earth or permanently fastened to anything
attached to the earth;
the expression land includes benefits arising out of the land and
things attached to the earth or permanently fastened to anything
attached to earth. The word land thus should be understood in the
light of the elongated definition , as given in the land acquisition ACT
1894."
Since the market value has not been defined under the Land Acquisition
Act, Mr. Kar, learned Counsel submitted that the Court can comprehend the
concept of market value taking lumen from the definition of market value as
defined under Section 2 (16B) of the Indian Stamp Act, 1899.
"(16B) Market value.--"market value", in relation to an instrument
through which--
(a) any security is traded in a stock exchange, means the price at
which it is so traded;
(b) any security which is transferred through a depository but not
traded in the stock exchange, means the price or the consideration
mentioned in such instrument;
(c) any security is dealt otherwise than in the stock exchange or
depository, means the price or consideration mentioned in such
instrument;]"
Since Land Acquisition Act, 1894 is a complete Code in itself, there is no
need to look upto the amended provision of Stamp Act (West Bengal
Amendment) came into force with effect from 31st January, 1994, post
acquisition of the property.
In Administrator General of W.B. vs. Collector reported in (1988) 2
SCC 150 at page 156 Hon'ble Apex Court held:-
"8. The determination of market value of a piece of land with
potentialities for urban use is an intricate exercise which calls for
collection and collation of diverse economic criteria. The market
value of a piece of property, for purposes of Section 23 of the Act, is
stated to be the price at which the property changes hands from a
willing seller to a willing, but not too anxious a buyer, dealing at
arms length. The determination of market value, as one author put
it, is the prediction of an economic event viz. the price outcome of a
hypothetical sale, expressed in terms of probabilities. Prices fetched
for similar lands with similar advantages and potentialities under
bonafide transactions of sale at or about the time of the preliminary
notification are the usual, and indeed the best, evidences of market
value. Other methods of valuation are resorted to if the evidence of
sale of similar lands is not available."
In order to ascertain the market value Court can rely upon documents
which would offer reasonable basis to fix the price paid in sale or purchase of
land, within the reasonable time from the date of acquisition of land in
question, would be the best piece of evidence provided the transaction is
bonafide. In its absence the price paid for land possessing similar advantages
to the land in the neighbourhood of the land acquired in or about the time of
notification would supply the data to assess the market value.
Contemporaneous sale instances considered by the valuer Mr. Deb, while
preparing the valuation report, Exhibit-X, is sufficient to determine the market
value. Had there been no such sale instances the Court could have insisted for
previous judgements as relevant bench mark to determine the market value. In
this regard we can rely upon the decision of Hon'ble Apex Court in Bhag Singh
etc. vs. Union of India & Anr. reported in 2022 SCC OnLine SC 553 wherein it
is held :-
"The Reference Court as well as the High Court has given a finding
of fact that no sale instance produced by the parties are relevant for
determining the market value. Therefore, the only relevant basis is
the previous judgments."
As a matter of principle when several exemplars with reference to the
similar land are available, the highest of the exemplars, if it is a bonafide
transaction, has to be considered and accepted. After all when the land is
compulsorily taken away from the possession, the owner of the land is entitled
to the highest value which similar land in the locality, is shown to have fetched
in a bonafide transaction entered into between the willing purchaser and
willing seller near about the time of acquisition.
The valuer fixed the valuation on averaging the two exemplars, though
not permissible, in view of the judgements of Hon'ble Apex Court pronounced
in Sri Rani M. VijayalakshmammaRaoBahadur, Ranee of Vuyyur v.
Collector of Madras, reported at (1969) 1 MLJ 45 (SC) wherein it is held:-
"Where sale-deeds pertaining to different transactions are relied on
behalf of the Government, that representing the highest value should
be preferred to the rest, unless there are strong circumstances
justifying a different course. In any case we see no reason why an
average of two sale-deeds should have been taken in this case."
Hon'bleApex Court again in Anjani Molu Dessai v. State of Goa &Anr.
reported at (2010) 13 SCC 710, held in para 20 as under:-
"20. The legal position is that even where there are several
exemplars with reference to the similar lands, usually the highest of
the exemplars, which is a bona fide transaction, will be considered."
In Mehrawal Khewaji Trust (Regd.) Faridkot & Ors. Vs. State of
Punjab &Ors. reported at AIR 2012 SC 2721 it is held by the Apex Court
that:
"When the land is being compulsorily taken away from a person, he
is entitled to the highest value which similar land in the locality is
shown to have fetched in a bona fide transaction entered into
between a willing purchaser and willing seller near about the time of
the acquisition. In our view, it seems to be only fair that where sale-
deeds pertaining to different transactions are relied on behalf of the
Government, the transaction representing the highest value should
be preferred to the rest unless there are strong circumstances
justifying a different course. It is not desirable to take an average of
various sale-deeds placed before the authority/court for fixing fair
compensation."
According to valuer the highest exemplar is Rs. 5,10,618/- per cottah
which should have been accepted. Yet we approve and accept the valuation of
land @ Rs. 4,79,320/- per cottah as determined by the valuer, we are
inclined to accept the same as just and proper, ignoring the assessment of
learned L.A. Judge, only because fatigued erstwhile owners of the land and
awardees are ready to accept the same, considering the age of the litigation.
The property in the heart of Calcutta city, at Park Street, and not
encumbered, therefore, does not deserve any discount on its valuation.
Hon'ble Apex Court in the Special Tehsildar Land Acquisition,
Vishakapatnam vs. A. MangalaGowriSmt reported in (1991) 4 SCC 218
held:-
"It is to be noted that in building Regulations, setting apart the lands
for development of roads, drainage and other amenties like
electricity etc. are condition precedent to approve lay out for building
colonies. Therefore, based upon the situation of the land and the
need for development the deduction shall be made. Where acquired
land is in the midst of already developed land with amenities of
roads, drainage, electricity etc. then deduction of 1/3 would not be
justified."
The definition of land as quoted herein before, is inclusive in nature and
while determining the valuation we need to consider the value of land and
building standing thereupon as on the date of notification published. Hon'ble
Apex Court in Administrator General of W.B. v. Collector reported in (1988)
2 SCC 150 at page 159 held:-
"17. ....... Land is one kind of property; land and building together
constitute an altogether different kind of property. They must be
valued as one unit. But where, however, the property comprises
extensive land and the structures thereon do not indicate a
realisation of the full developmental potential of the land, it might
not be impermissible to value the property estimating separately the
market value of the land with reference to the date of the
preliminary notification and to add to it the value of the structures as
at that time. In this method, building value is estimated on the basis
of the prime cost or replacement cost less depreciation. The rate of
depreciation is, generally, arrived at by dividing the cost of
construction (less the salvage value at the end of the period of utility)
by the number of years of utility of the building. The factors that
prolong the life and utility of the building, such as good
maintenance, necessarily influence and bring down the rate of
depreciation."
Here in this case the building is situated over a portion of land
measuring about more than 10 cottahs. Therefore, we feel no difficulty to
accept the method of determining the valuation of the land and building
separately, as done by the Valuer.
Upon perusal of the valuation report, Exhibit-X we find that valuation of
the structure has been assessed at Rs. 46,76,212/- and the valuer considered
depreciation @ 35% as on 2015, when he assessed the valuation of the
building, which is contrary to the statutory mandate as laid down under
Section 4 of the Act. The valuation of the building assessed as on 1989 should
be taken into consideration and not the valuation as on 2015 as done by the
Valuer.
The property was free from encumbrances, in view of Section 16 of the
Act and as admitted by the appellant State and H.E.C.L in their pleading and
in the recital of deed of lease. Therefore, deduction of 1/3rd of the valuation as
given by the valuer on the ground that the property is encumbered, is not only
factually incorrect, but also the law does not permit such deduction as well.
A table showing the valuation assessed by the LA Collector, learned LA
Judge and the Valuer of H.E.C.L. as given below would show that the Valuation
assessed by the Valuer of H.E.C.L., Exhibit X appears to be reasonable and
may be accepted but with modification.
Collector / As per the Claim as per Heavy
State impugned Engineering Corporation
Government Decree passed Limited in additional
in the by the Ld. evidence produced in
Present District Judge Appeal
Appeal
Total Value of Rs. Rs. 31,46,551/- Rs 49,59,044/-
Land 14,65,218/-
(Rs. 33,46,184/- after
deduction
of 1/3rd on account
occupation of Heavy
Engineering which
impermissible in
law)
Total Value of Rs. Rs. 71,38,377/- Rs. 46,67,212/-
Structures 20,40,826/-
[Rs. 29,87,016/-claimed
which is not permissible
since such value
is in 2015 after applying
depreciation]
(no deduction
claimed by Heavy
Engineering on account
of its own occupation of
structures)
As we have pointed out, the chartered valuer was not justified in
determining the age of the building as 34 years as on 2015 when he assessed
the valuation of the land and building, instead of 1989, for the purpose of
assessing the depreciation value of the building. Learned LA Judge determined
the valuation of the building @ Rs. 71,38,377/- relying upon the valuation
report of the building prepared by Mr. Arun Chatterjee, who even did not visit
the premises. No case has been made out that the building has lost it's utility
and deserves salvage value. Therefore, we accept the valuation of the structure
as assessed by the valuer @ Rs. 46,67,212/-.
Thus the erstwhile landowners are entitled to get a sum of Rs.
96,26,256/- as compensation instead and place of Rs. 1,02,84,928/-. In
addition thereto they are entitled to statutory benefits permissible under the
law in view of Section 23 (1A), 23(2) and 28 of the Land Acquisition Act, 1894.
With the aforesaid observation we are inclined to allow the appeals and
cross-objection. The judgement passed by learned L.A. Judge in proceeding no.
13 of 2000 is modified as aforesaid. The appeals as well as cross-objection
being FA 380 of 2009, COT 3975 of 2006 and FAT 651 of 2018 along with
pending applications are thus disposed of, however, without any order as to
cost.
Learned Registrar General is directed to release the amount out of Rs.
1,00,47,874.70/- deposited by the H.E.C.L., in favour of the
respondents/erstwhile landowners Dilip Kumar Jaiswal and others within four
weeks from date of communication of the judgement and release the excess
amount if any, in favour of H.E.C.L. In the event compensation including,
statutory benefits like solatium, interest etc. exceeds the deposited amount,
H.E.C.L. shall deposit the balance amount with the learned Registrar General,
High Court within four weeks, from the date of intimation in this regard by the
learned Registrar General.
Department is directed to draw up the decree as expeditiously as possible.
Department is directed to send copy of the judgement to the learned Registrar
General, High Court for information and compliance. Lower court record be
sent down along with copy of judgement.
Urgent Photostat certified copy of this judgement, if applied for, should be
made available to the parties upon compliance with the requisite formalities.
I agree
(Siddhartha Roy Chowdhury, J.)
(Soumen Sen, J.)
.
