Calcutta High Court (Appellete Side)
Mira Maity & Anr vs State Of West Bengal on 19 July, 2023
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon'ble Justice Soumen Sen
and
The Hon'ble Justice Uday Kumar
FA 140 of 2015
Mira Maity & Anr.
Vs.
State of West Bengal
With
COT 31 of 2023
The State of West Bengal & Anr.
Vs.
Sarala Maity & Ors.
With
COT 32 of 2023
The State of West Bengal & Anr.
Vs.
Lakshmi Kanta Maity & Ors.
With
COT 33 of 2023
The State of West Bengal & Anr.
Vs.
Sarala Maity & Ors.
With
COT 34 of 2023
The State of West Bengal & Anr.
Vs.
Mira Maity & Ors.
With
FA 141 of 2015
Smt. Radha Rani Maity & Ors.
Vs.
State of West Bengal
With
2
FA 142 of 2015
Sarala Maity & Anr.
Vs.
State of West Bengal
With
FA 143 of 2015
Sarala Maity & Anr.
Vs.
State of West Bengal.
For the Appellants in : Mr.Nilanjan Bhattacharjee, Adv.
FA 140 of 2015 FA 141 of 2015 Mr. Sourav Kumar Mukherjee, Adv.,
FA 142 of 2015, FA 143 of 2015 Mr. Kaushik Chowdhury, Adv.,
And for the respondents in Mr., Soumoyadipa Kanu Adv.,
COT 31 of 2023, COT 32 of 2023 Ms., Sahana Pal Adv.,
COT 33 of 2023, COT 34 of 2023 Ms. Ishan Bhattacharya, Adv.
For the Appellants in : Mr. Soumitra Bandyopadhyay, Adv.
COT 31 of 2023, COT 32 of 2023 Mr. Priyabrata Batabyal, Adv.
COT 33 of 2023, COT 34 of 2023
And for the respondents in
FA 140 of 2015, FA 141 of 2015
FA 142 of 2015, FA 143 of 2015
Hearing concluded on : 14th July, 2023
Judgment on : 19th July, 2023
Soumen Sen, J. - The appeal and the cross-appeal are arising out of a
judgment passed in a batch of matters arising out of land acquisition
proceedings initiated in respect of 1.78 acres of land of Mouza Gopal Nagar
under P.S. Panskura.
2. In a reference under Section 18 of the Land Acquisition Act 1894, the
learned Additional District and Session Judge, 2nd Court, Tamluk, district
Purba Medinipur enhanced the compensation from Rs.2009/- per decimal as
determined by the LA Collector to Rs. 5000/- per decimal. There are 17 land
loosers. They have challenged the award of the Land Acquisition Collector.
3. The appellants are the award holders in the said reference.
4. They have prayed for enhancement of compensation based on three
title deeds out of which two are situated in Mouza Ryne and one in Gopal
Nagar.
5. The learned Trial Judge in deciding the compensation amount had
taken into consideration three title deeds namely, deed no. 2619 dated 25th
November, 2003 of plot no.939, deed no.2620 dated 25th November, 2003 of
plot no.1461 and deed no.3639 dated 1st December, 2003 regarding plot
no.939 giving an approximate valuation of Rs.6000/- per decimal.
6. The learned trial Judge disregarded the claim of fixing the
compensation @ Rs.35,000/- per decimal as claimed by the land owners on the
ground that Exbt. 4 and 5 are in respect of properties situated in Ryan Mauza
and the sale transaction disclosed in respect of Mouza Gopalnagar, that is,
Exbt.6 is not contiguous to plots covered in Exbt. 4 and 5. Moreover the land
details relief upon as an exemplar i.e. Exbt.6, although situated in Gopalnagar
Mouza is small and the transaction in relation to the said land had taken place
at a point of time when the acquisition proceeding by the Government had
already commenced.
7. The land owners are not satisfied with the said enhancement and
hence these appeals.
8. The State has filed cross objection in all the appeals. In the cross
objections the State has challenged the enhancement, grant of soletium and
determination of the compensation relying upon the provisions of the Right to
Fare Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (Act 30 of 2013).
9. In view of commonality of the issues involved all the appeals and
cross appeals are heard together.
10. In assailing the judgement Mr. Nilanjan Bhattacharjee learned
Advocate appearing on behalf of the appellant has submitted that the learned
L.A Judge has failed to take into consideration three registered deed of
conveyances marked as Exbt. 4, 5 and 6 which are identical, same and/or
similar to the lands acquired and could be the best exemplar for the purpose of
determination of the compensation amount. It is submitted that the lands sold
under those instruments were situated besides the main road and almost in
the vicinity and in contiguous area absolutely alike to that of the subject land
under acquisition.
11. It is submitted that the reason for disregarding the sale deeds was
due to small quantities of land involved and it relates to transaction of smaller
plots. It is submitted that smallness of the plot is not a relevant consideration
and it is not an absolute proposition that the market value of sale of small
plots cannot be considered at all in view of the decision of the Hon'ble Supreme
Court in Karnataka Urban Water Supply and Drainage board & Ors. Vs.
K.S. Gangadharappa & Ors., reported in 2009(11) SCC 164.
12. It is submitted that the reliance on the instruments by the
government cannot be considered to be exemplar having regard to the fact that
all those plots are situated far away and at an interior location of the Gopal
Nagar Mouza, land locked and not on the road side.
13. It is submitted that the sale transactions disclosed in support of
enhancement are all proximate to the date of notification and could be the best
guide to decide the sale value of such lands. The locational advantage could not
have been disregarded. It is submitted that the sale transactions in respect of
land mentioned in registered deeds being Exbt.4 and 5 are situated just
opposite to the subject land and sale had taken place proximate to the date
when present land was acquired.
14. It is submitted that the subject land could not be considered to be
large area of land since there are number of persons who owned the subject
land namely, 1.73 acres. A single plot of land is owned by 17 owners. They are
in joint possession and enjoyment. Considering the number of owners who
have lost their land due to acquisition, the size and area of the land in question
could not be said to be large. The learned trial court has failed to appreciate
this aspect of the matter and treated the land in question as small.
15. The learned Counsel relying upon the decision of the Hon'ble
Supreme court in Chimanlal Hargovinddas Vs. Special Land Acquisition
Officer, Poona and Ors., reported in 1988(3) SCC 751 submitted that plus
factors mentioned in paragraph 4 (XIV) was disregarded in the instant case.
The plus factors are: smallness of size, proximate to a road, frontage of a road
and regular shape. Moreover, Exbt.4, 5 and 6 should have been considered as
examplars for determination of the valuation.
16. It is submitted that both from the view point of proximity of time
angle and proximity from situation angle the valuation could not have been
less than Rs.35,000/-.
17. Per contra Mr. Soumitra Bandyopadhyay the learned Counsel
appearing on behalf of the State respondents have submitted that plot no.1562
of Gopal Nagar Mouza although situated on the road side is far away from
acquired plot numbers 941 and 1460 of Gopal Nagar Mouza. It is
approximately 800 metres away from the acquired land. The plot no.98 covered
by a deed nos.2711 of 2003 and 2712 of 2003 is in Ryne Mouza and is far away
from the acquired plot no.941 and 1460 of Gopal Nagar Mouza. It is
approximately 1400 metre away from the acquired land.
18. The registered deeds in respect of land situated in Ryne Mouza is
situated far away from the main road and not opposite to the main road. The
market value was determined on the basis of the sale deeds and data collected
from the concerned sub-registry office. In determining the valuation eight
number of sale deeds were considered above 10 decimals of land along with
plot no.1461 and some other plots adjacent to the suit plots of Gopal Nagar
Mouza.
19. It is strenuously argued that Exbt. 4,5 and 6 are not comparable
units and could not have been treated as examplar. The land comprised in
Exbt.6 is only 4.6 decimal and the agreement for sale was executed on 20th
June, 2003 and registered on 22nd January, 2004. This transaction is nearer to
the date of the notification dated 22nd January, 2004 issued under Section 4 of
the LA Act, 1894 and it could not be considered to be the exemplar both having
regard to the small quantity of land involved and nearness to the time of
acquisition. The rate of compensation was fixed in term of West Bengal Land
Acquisition Manual. The instrument relied upon by the LA Collector were of
adjacent area and situated in the same Mouza.
20. However, in all fairness it is submitted that the market value
determined by the LA Judge at Rs.5,000/- per decimal can be accepted.
21. We are presently concerned with the enhancement of the
compensation amount as determined by the learned LA judge. The learned L.A
Judge has enhanced the compensation from Rs.2009/- per decimal to
Rs.5000/- per decimal.
22. The learned Counsel for the appellant has submitted that in
enhancing the compensation the leaned trial judge has merely complied with
the requirement of Section 25 of the Act, in a mechanical manner without
considering Section 24 read with Section 23(1-A) of the Land Acquisition Act,
1894.
23. For proper appreciation of the argument made on behalf of the
parties with regard to the compensation and its enhancement it is relevant to
consider Section 23(1) of LA Act, 1894. The said Section reads:
Section 23(1) in The Land Acquisition Act, 1894
(1) In determining the amount of compensation to be awarded for land
acquired under this Act, the Court shall take into consideration--
first, the market value of the land at the date of the publication of
the [notification under section 4, sub-section (1)];
secondly, the damage sustained by the person interested, by reason
of the taking of any standing crops or trees which may be on the land
at the time of the Collector's taking possession thereof;
thirdly, the damage (if any), sustained by the person interested, at
the time of the Collector's taking possession of the land, by reason of
severing such land from his other land;
fourthly, the damage (if any), sustained by the person interested, at
the time of the Collector's taking possession of the land, by reason of
the acquisition injuriously affecting his other property, movable or
immovable, in any other manner, or his earnings;
fifthly, if, in consequence of the acquisition of the land by the
Collector, the person interested is compelled to change his residence
or place of business, the reasonable expenses (if any) incidental to
such change; and
sixthly, the damage (if any) bona fide resulting from diminution of
the profits of the land between the time of the publication of the
declaration under section 6 and the time of the Collector's taking
possession of the land.
The said subsections have been amended in the state of
West Bengal in the manner following:
In section 23, in sub-section (1),
(1) (i) in clause fifthly, the word "and" at the end shall be omitted
and deemed always to have been omitted;
(ii) in clause sixthly, for the words "possession of the land",
words "possession the land, and shall be deemed always to have
been substituted;
(iii) after clause sixthly, following clause shall be deemed always
to have been inserted. namely:-
"seventhly, the loss of earning, if any, caused to the person
interested, in consequence of the acquisition of the land, where
earning was derived directly from such land."
[Vide West Bengal Act 30 of 1963, sec. 4 as amended by Land
Acquisition (West Bengal Amendment, Act, 1981, sec. 4)].
In sub-section (1A), the following proviso was substituted,
namely:-
Provided that-
(a) in respect of the acquisition of the land referred to in sub-
section (3A) of section 9, in addition to the market-value of the
land, the Court shall in every case award an amount calculated
at the rate of twelve per centum per annum on the value of the
land for the period commencing on and from the date of taking
possession of the land to the date immediately before the date of
issue of the notice under sub-section (3A) of section 9 plus
interest at the rate of twelve per centum per annum on the
market-value of the land from the date of issue of the notice
under sub-section (3A) of section 9 to the date of award of the
Collector, and
(b) in respect of the acquisition of the land referred to in sub-
section (3B) of section 9, in addition to the market-value of the
land, the Court shall in every case award a amount calculated at
the rate of twelve per centum per annum on the value of land for
the period commencing on and from the date of taking
possession of the land to the date immediately before the date of
publication of the notice under sub section (la) of section of the
West Bengal Land (Requisition and Acquisition) Act, 1948
(hereinafter referred to in this proviso as the said Act), as re-
enacted by the West Bengal Land (Requisition and Acquisition)
Re-enacting Act, 1977, plus interest at the rate of twelve per
centum per annum on the market-value of the land for the
period commencing on and from the date of publication of the
notice under sub-section (la) of section 4 of the said Act to the
date of award of the Collector.
Explanation-For the purposes of this proviso, the expression
"value of the land" shall mean the market value of the land
determined with reference to the date of taking possession of the
land.'
[vide West Bengal Act, 19 of 1999, sec.3]."
24. In the instant case land was acquired for construction of 33/11 K.V.
Electric power at Kolaghat, Purba Medinipur. It was notified on 16th January,
2004 under Section 4 of LA Act, (1) of 1894. Seventeen plot holders were
affected by the said acquisition.
25. The land admittedly is an agricultural land. The land owners have
strenuously contended that there only means of livelihood by cultivation of
lands acquired have been taken away by reason of such acquisition. In fact
P.W.1 has deposed that the acquired land is cultivated twice in every year
yielding crops twice in a year. There is no contrary evidence to that effect. The
respondent denied highest compensation on the ground that the exemplars are
all in respect of small quantities of land. In fact 17 persons jointly are the
owners of the land acquired by the collector. The land is undemarcated and
unpartitioned.
26. Even, if we accept that plots of land situated in Ryne Mouza could
not be considered to be best exemplars not being situated in the same Mouza
and absence of any transaction proximate to the date of notification, Exbt. 6 is
undoubtedly proximate to the date of notification and is in respect of 4.5
decimal of land situated in the Gopal Nagar Mouza. The sale consideration
appears to be Rs.1,06,000/- for 4.60 decimal.
27. The State has two objections to rely on the said document. Firstly, it
is situated approximately 800 metres away from the acquired land and
secondly, smallness of the plot.
28. The three exhibits relied upon by the appellants relate to
transactions that are proximate to the date of acquisition and possessing same
characters and nature. In a situation where there may not be uniformity of the
sale transactions the highest exemplar would be the useful guide for
determining the compensation. The preference to highest exemplar in a
situation of this nature is highlighted by the Hon'ble Supreme Court in
Mehrawal Khewaji Trust, Faridkot & Ors., v. State of Punjab & Ors.,
reported in AIR 2012 SC 2721 : 2012 (5) SCC 432 in which it is stated:
"12. As pointed out above, the Reference Court failed to take note of the
highest exemplar, namely, the sale transaction under Ext. A-61 dated
22.07.1977. In this regard, it is useful to refer the decision of this Court in
Sri Rani M. Vijayalakshmamma Rao Bahadur, Ranee of Vuyyur v.
Collector of Madras (1969) 1 MLJ 45 (SC). In this case, this Court has
held thus:
... 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.
13. In State of Punjab and Anr. v. Hansraj (Dead) by L.Rs. Sohan
Singh and Ors. (1994) 5 SCC 734, this Court has held that method of
working out the 'average price' paid under different sale transactions is
not proper and that one should not have, ordinarily recourse to such
method. This Court further held that the bona fide sale transactions
proximate to the point of acquisition of the lands situated in the
neighbourhood of the acquired lands are the real basis to determine the
market value.
14. This Court in Anjani Molu Dessai v. State of Goa and Anr. (2010)
13 SCC 710, after relying upon the earlier decisions of this Court in M.
Vijayalakshmamma Rao Bahadur (supra) and Hansraj (supra) held in
paragraph 20 as under:
20. The legal position is that even where there are several exemplars
with reference to similar lands, usually the highest of the exemplars,
which is a bona fide transaction, will be considered.
Again, in para 23, it was held that "the averaging of the prices under
the two sale deeds was not justified."
15. It is clear that when there are several exemplars with reference to
similar lands, it is the general rule that the highest of the exemplars, if it
is satisfied, that it is a bona fide transaction has to be considered and
accepted. 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 a 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."
(emphasis supplied)
29. In the aforesaid case the reference court relied upon 3 exhibits like
the present one having different sale transactions including other sale
transactions.
30. In the instant matter the compensation was enhanced by applying
the rule of average but in applying the said principle Exbt.6 was ignored.
However there is no cross appeal. The principle of law that the highest
exemplar is required to be accepted, is fortified by the aforesaid decision. In
fact, the 3 sale deeds relied upon by the land owners for higher compensation
are instances of sale proximate to the date of acquisition possessing same
nature and character similar to the situation in Vittal Rao & Anr. v. Special
Land Acquisition Officer reported at 2017(8) SCC 558 where the appellants
urged that out of 11 sale the highest value should have been made the basis
for determination of the market value of the acquired land.
31. In the said decision reference was made to Chimanlal
Hargovinddas v. Special Land Acquisition Officer, Poona & Ors., reported
in 1988 (3) SCC 751 and Union of India v. Raj Kumar Baghal Singh
reported in 2014 (10) SCC 422. In Chimanlal (supra) in paragraph 15 the
Hon'ble Supreme Court has observed that there cannot be any hard and fast or
rigid rule in determining the compensation. Common sense is the best and
most reliable guide. One of the distinguishing features would be smallness and
the largeness of the plot as a large block of land would have to be development
by "preparing a lay out, carving out roads, leaving open spaces, plotting out
similar plots, waiting for purchaser (meanwhile the invested money will be
blocked) and the hazards to the entrepreneur. The factors can be discounted by
making a token by way of allowance at an appropriate rate range approximately
20% to 50% to account for land required to set apart for carving out lands and
plotting of small plots. It would also depend upon whether it is a rural area or
urban area. It laid down the principle that every case must be dealt with on its
"own fact pattern bearing in mind all these factors as a prudent purchaser of
land in which possession the judge must place himself".
32. Upon consideration of the relevant judgments in Vithal Rao (supra)
the law is summarized thus:
"27....... These principles are invariably kept in mind by the Courts
while determining the market value of the acquired lands (see also
Union of India v. Raj Kumar Baghal Singh (Dead) Through Legal
Representatives and Ors. (2014) 10 SCC 422).
28. In addition to these principles, this Court in several cases have also
laid down that while determining the true market value of the acquired
land and especially when the acquired land is a large chunk of
undeveloped land, it is just and reasonable to make appropriate
deduction towards expenses for development of acquired land. It has
also been consistently held that at what percentage the deduction
should be made vary from 10% to 86% and, therefore, the deduction
should be made keeping in mind the nature of the land, area under
acquisition, whether the land is developed or not and, if so, to what
extent, the purpose of acquisition, etc. It has also been held that while
determining the market value of the large chunk of land, the value of
smaller piece of land can be taken into consideration after making
proper deduction in the value of lands and when sale deeds of larger
parcel of land are not available. This Court has also laid down that the
Court should also take into consideration the potentiality of the
acquired land apart from other relevant considerations. This Court has
also recognized that the Courts can always apply reasonable amount
of guesswork to balance the equities in order to fix a just and fair
market value in terms of parameters specified Under Section 23 of the
Act. (See Trishala Jain and Anr. v. State of Uttaranchal and Anr.,
(2011) 6 SCC 47).
30. Keeping the aforementioned principles in mind when we take note
of the facts of the case at hand, we find that firstly, the land acquired
in question is a large chunk of land (30 acres approx.); Secondly, the
purpose of acquisition is "Establishment of Rehabilitation Centre";
Thirdly, it is situated within the municipal limits; Fourthly, its one side
is abutting the main district road (MDR); Fifthly, it is not fully
developed; Sixthly, some buildings have come up in its near proximity;
Seventhly, the Appellants (land owners) have not filed any exemplar's
sale deeds relating to large piece of land sold in acres to prove the
market value of the acquired land; Eighthly, all sale deeds relied on by
the Appellants pertain to very small piece of land such as, 25x55 ft.,
40x20 ft., 40x40 ft, 12x45 ft, 30x40 ft., 12x45 ft, 60x60 ft, 10x65 ft,
50x65 ft., 40x65 ft. and 29x49 ft. whereas the land acquired, as
mentioned above, is quite large (30 acres) and, the price at which these
small plots were sold is Rs. 85/- per sq. ft., Rs. 70/- per sq. ft., Rs.
80/- per sq. ft., Rs. 69/- per sq. ft., Rs. 55/- per sq. ft., Rs. 64/- per sq.
ft., Rs. 65 per sq. ft., Rs. 100/- per sq. ft., and Rs. 218/- per sq. ft.,;
Ninthly, these eleven plots were sold prior to the date of acquisition
(2000, 2001 and 2002) whereas the acquisition was in the year 2003;
Tenthly, the small parcel of lands sold under these sale deeds are
situated in near proximity of the acquired land and some were part of
the acquired land; Eleventhly, all the eleven sale deeds are held bona
fide and proper and lastly, these sale deeds, therefore, can be relied on
for determining the proper market value of the acquired land."
(emphasis supplied)
33. In the aforesaid decision the purpose of acquisition was considered
to be one of the relevant factors and the Apex court determined the
compensation amount by applying the rule of average and made deductions of
40% of the amount towards development charges out of the average price
worked out.
34. In Mohammad Yusuf & Ors. v. State of Haryana & Ors.,
reported in 2018 (16) SCC 105 it was reiterated that when there are several
exemplars with reference to similar land usually highest exemplars which is
bona fide transaction is to be considered.
35. The term 'compensation' under Section 23 of the LA Act, 1894
would mean "a just equivalent of what owner has been deprived of" and hence
acquisition must pass the test of compensation being reasonable, just and fair.
[See. Mohammad Yusuf & Ors., (supra)].
36. The aforesaid title deed namely, Exhibit.6 undoubtedly is proximate
from time angle and situation angle. It cannot be disputed that the said
transaction is contemporaneous and disclose the same character of the land
forming the subject matter of the land acquired for the purpose of the thermal
power station.
37. Considering the nature of the evidence the purpose of acquisition
and the expenses required towards development cost applying the principles
laid down in several judgments alluded to above we are of the opinion that the
market price of the land for the purpose of determining the compensation
would be assessed at Rs.22.000/- per decimal. It would be just proper and
reasonable to allow deduction at 33.33 per cent on Rs.22,000/- considering the
largeness of the property, thereby the market value of the land acquired for the
purpose of compensation would be Rs.14,650/- instead of Rs.5000/- per
decimal.
38. In view of the fact that acquisition proceeding had commenced
under the LA Act of 1894 and the acquisition under the 1894 Act is held to be
valid the appellant is not entitled to compensation payable in terms of the 2013
Act as it was not applicable to the acquisition.
39. Mr. Nilanjan Bhattacharjee learned Advocate, for the appellants has
also accepted that the compensation has to be calculated with reference to
1894 Act. In fact award although had referred to the 2013 Act did not apply the
provisions of the said Act in determining the compensation. In any event, we
have applied the provisions of 1894 Act for the purpose of determination of
compensation.
40. The appellants are entitled to solatium @ 30% in terms of Section
23(2) and an additional amount @ 12% per annum from February 4, 2004 to
August 4, 2004 in terms of Section 23(1)(A).
41. The collector shall pay interest on the excess amount @ 9% per
annum from the date on which he took possession of the land till actual
payment.
42. The judgment of the learned LA Judge is modified to the aforesaid
extent.
43. We have been informed that the respondent authorities have
deposited the amount determined by the Collector in the Land Acquisition
Reference and the said amount has been invested in a fixed deposit account by
the L.A. Court.
44. The State respondents shall deposit the balance amount in terms of
the modified award with the learned L.A. Judge within four weeks from date.
45. We direct the learned L.A. Court to disburse the said amount with
accrued interest to the appellants upon proper verification of their identity
according to the share within two weeks thereafter.
46. The department is directed to send down the LCR forthwith.
47. The appeals and the cross-appeals are disposed of with the above
directions.
I agree (Soumen Sen, J.)
(Uday Kumar, J.)
