State Of West Bengal vs Sarathi Rani Mallick @ Mondal ...
2023 Latest Caselaw 3477 Cal

                     IN THE HIGH COURT AT CALCUTTA
                                Civil Appellate Jurisdiction
                                   APPELLATE SIDE

Present:

The Hon'ble Justice Tapabrata Chakraborty
                 &
The Hon'ble Justice Partha Sarathi Chatterjee

                                        FA 51 of 2023
                                      FAT 393 of 2018
                                    State of West Bengal
                                         - Versus -
                         Sarathi Rani Mallick @ Mondal (deceased)
                       represented by Goutam Kumar Mallick & Others
                                             With
                                       COT 16 of 2019
                         Sarathi Rani Mallick @ Mondal (deceased)
                       represented by Goutam Kumar Mallick & Others
                                         - Versus -
                                    State of West Bengal




For the Appellant in FA 51
of 2023 & for the Respondent
/State in COT 16 of 2019            :      Mr. Chandi Charan De,
                                           Mr. Rabindra Narayan Dutta,
                                           Mr. Hare Krishna Halder.



For the Respondent in FA 51
 of 2023 & for the cross-
objectors in COT 16 of 2019         :      Mr. Debayan Bera,
                                           Mr. Sakti Prasad Chakrabarti.



Hearing is concluded on             :      31st March, 2023.



Judgment On                         :      17th May, 2023.
                                       2




Partha Sarathi Chatterjee, J.

1. The present appeal at the instance of State of West Bengal is

directed against the judgment dated 31st August, 2017 passed by the

learned Land Acquisition Judge -cum- learned Additional District Judge, 3rd

Court, Barasat, 24 Parganas (North) in L.R.A. case no. 62 of 2001 and L.R.A.

case no. 63 of 2001 and in connection with the appeal, referring claimants

have also filed cross-objection claiming inadequacy of compensation, which

has been registered as C.O.T. no. 16 of 2019.

2. Under the project of 'Regularisation of Sulangari Post 50 Squatters

Colony', a chunk of Sali and Doba land measuring an area of 11.42 acres

out of total 71.53 acres of land comprising in R.S. Plot nos. 663, 678, 686,

687, 688, 690, 691, 679, 680 and 681 which belonged to referring claimants

were acquired in connection with the land acquisition case vide. No.

LA.II/22 of 1988-89.

3. Lands under the aforementioned project were acquired under The

West Bengal Land (Requisition and Acquisition) Act, 1948 (in short, Act- II of

1948) and Notification under Section 4(1a) of Act -II of 1948 was published

on 27.12.1996 and possession of the acquired lands were taken on

19.12.1988 and award was made and published on 3.6.1997 under the

serial nos. 35, 78, 129, 135, 136, 152, 159, 85, 79, 86 and 128.

4. In the award, LA Collector determined the market value of Sali and

Doba Land @ Rs.5,60,076/- per acres and Rs.2,80,038/- per acres

respectively. Respondent being the referring claimants having his objection

as to the amount of compensation, particularly, as to the determination of

market value of lands sought for reference under Section 8 of Act-II of 1948.

Consequently, the matter was referred to the learned LA Judge.

5. While answering to the reference, learned LA Judge assessed the

market values of Sali land @ Rs.17,600/- per cottah and Doba @

Rs.11,733/- per cottah respectively. Aggrieved thereby, the State of West

Bengal (in short, appellant) has preferred this appeal contending, inter alia,

that the learned LA Judge fell in error in enhancing the value of the land

basing upon the deeds produced by referring claimants without applying

depreciation on transactions of small pieces of land and learned Judge

below committed mistake in allowing rental compensation and in awarding

interest in contravention of Section 23 of Land Acquisition Act -I of 1984 (in

short, Act-I of 1894) and learned Judge below has applied wrong method to

determine the market value on the basis of average of consideration monies

shown in one deed referred by Collector and one deed produced by the

referring claimants.

6. In the cross-objection, referring claimants alleged that in assessing

market value, LA Judge has placed reliance upon the deeds taken into

account by the Collector in awarding the compensation but those deeds

have not been produced in Court and have not been admitted in evidence.

7. Mr. Dutta, learned counsel representing the appellant submits that

it is trite law that plaintiff (here, the referring claimants) is to prove his own

case and for this proposition, he referred two judgments delivered in cases of

Union of India & Ors. vs. Vasavi Cooperative Housing Society Ltd. & Ors.

reported in (2014) 2 SCC 269 and Jagdish Prasad Patel (dead) thr. Lrs. &

Anr. Vs. Shivnath & Ors. reported in (2019) 6 SCC 82. He argues that in the

given case, only one Mihir Mallick testified on behalf of referring claimants

and his testimony has been totally destroyed in cross-examination and

hence, referring claimants has failed to substantiate his claim. He argues

that although deeds produced by referring claimants were admitted in

evidence but contents thereof have not been proved by bringing vendors or

vendees thereof and hence, learned Judge below has committed mistake in

assessing the market value basing upon such deeds and to fortify his such

claim, he placed reliance upon a judgment delivered in case of LICI & Anr.

Vs. Ram Pal Singh Bisen reported in (2010) 4 SCC 491 and he argues that

learned Judge below did not consider the aspect of 'Largeness of Land' of

referring claimants and did not make necessary deduction and hence,

according to Mr. Dutta, learned Judge committed mistake and for this

proposition, he relied upon two judgments delivered in cases of H.P. Housing

Board vs. Bharat S. Negi & Ors. reported in 2004 AIR SCW 797 and The Land

Acquisition Officer & Sub-Collector, Gadwal vs. Smt. Sreelatha Bhoopal & Anr.

reported in (1997) 3 ICC 376.

8. He further contends that the learned Court below took into account

the deeds of small quantum of land and did not consider whether the lands

situated in developed area or the lands acquired were having proximity with

bazar and other facilities or not and to bolster his argument, he also placed

reliance upon the judgments delivered in the cases of Ranvir Singh & Anr.

Vs. Union of India reported in (2006)1 ICC 293 and B.V. Nagesh & Anr. Vs.

H.V. Sreenivasa Murthy reported in (2011) 1 SBR 22.

9. In response, Mr. Bera, learned advocate for the

respondent/referring claimants (in short, respondent) rebuffed the claims of

Mr. Dutta contending that while making reference under Section 8 of Act -II

read with Section 18 of Act -I, Collector was required to furnish information

under Section 19(1)(d) of Act- I and if no such information is furnished, then

onus of referring claimants is bare minimum and to buttress his such

argument, he placed reliance upon a judgment, reported in (2004) 8 SCC

270.

10. Taking us to paragraph -6 of the judgment impugned, he

submitted that referring claimants produced seven deeds and mouza map

and oral testimony of one Mihir Mallick, who was subjected to cross-

examination also but State did not adduce any evidence. According to Mr.

Bera, the Court shall confine itself to the documents and/or evidence filed

and/or adduced by the parties in Court and Court of reference cannot travel

beyond the documents produced in Court and for this proposition, he relied

upon a judgment delivered in the case of Ramanlal Deochand Shah vs. State

of Maharashtra & Anr. Kantilal Manikchand reported in AIR 2013 SC 3452.

11. He contends that to determine market value, learned Court below

has made average of one deed relied upon by the Government and one deed

produced by the claimants which is wrong approach. Court cannot look into

the deed which has not been admitted as evidence in court.

12. He argues that project under which the lands were acquired is

'Regularisation of Sulangari Post 50 Squatters Colony'. Possession of lands

were taken in 1988 whereas notification was published in 1996. So, lands

were converted to bastu lands since long back and acquired lands are all

residential plots and were located in developed area and hence, the

claimants is entitled to get the price of bastu land.

13. On the issue of largeness of land, he argues that for preparation of

lay out plan etc. 10% of market value is deducted but government could not

produce any evidence to justify such deduction. To fortify his submission,

he placed reliance upon the judgments delivered in the cases of

Bhagwathula Samanna & Ors. v. Spl. Tahsildar & LAO, reported in AIR 1992

SC 2298, Visakhapatnam Municipality, State of Kerala vs. Padmanabha Iyer

reported in 2001 (1) ICC 364, State of W.B. V. Ganesh Chandra Mitra & Ors.

reported in AIR 1972 Cal 333, State of W.B. vs. Secretary, Union Club, Purulia

reported in AIR 1972 Cal 225 and Ashok Kumar & Anr. Vs. State of Haryana

reported in (2016) 4 SCC 544.

14. Main dispute centred around the appeal and cross-objection is the

determination of market value of Sali land and Doba. Collector determined

that market values of Sali land and Doba @ Rs.9,257/- per cottah and

Rs.4760/- per cottah respectively whereas the learned LA Judge enhanced

the market value to the tune of Rs.17,600/- per cottah and Rs.11,733/- per

cottah respectively.

15. Indisputably, in determination of market value, learned LA Judge

has taken into consideration the 15 sale instances of Sali lands, which the

Collector considered to assess the value, although those 15 deeds of sale

have not been produced in Court and ultimately, by taking average of two

sale instances reflected from deed of sale vide. No. 1333 and deed no. 2339

of 1996, market value of Sali land was assessed at Rs.17,600/- per cottah

(Rs.10,000/- + Rs.25, 200/- divided by 2 = Rs.17,600/-) and market value

of Doba was assessed @ 2/3rd of value of Sali land i.e. Rs.11,733/- per

cottah and the Court below did not allow any deduction on the premise that

lands acquired were already developed.

16. It is axiomatic that the reference under Section 8 of Act -II or

under Section 18 of Act-I is not an appeal against the award and award of

the Collector is not to be treated as the judgment of the trial court. Award is

merely an offer made by the Collector. Object of an enquiry in a reference is

to ascertain the price which the land or lands under acquisition is capable

of fetching in the open market on the date of notification and object of

assessment of market value of the lands under acquisition is to arrive at

reasonable and adequate market value of lands. In that process, some guess

work may be involved but feats of imagination may be eschewed and

mechanical assessment of evidence should be avoided.

17. The Court has to treat the reference as an original proceeding

before it and determine the market value afresh on the basis of material

produced before it and it is well settled that material utilised by the Collector

in assessment of market value cannot be utilised by the Court unless those

material are produced and proved before the Court. Market value cannot be

determined with mathematical precision but must be based on sound

discretion exercised by the reference Court in arriving at just and reasonable

price. The reference Court should be circumspect, pragmatic and careful in

analysing the evidence placed before it and in arriving at a just and fair

market value of the lands under acquisition. To ascertain the market value,

Court is to place itself in the arm-chair of hypothetical willing purchaser

who can be expected to pay for the lands to the willing vendor in the existing

use as well as relatable potentialities.

18. The referring claimants shall be placed at the position of plaintiff

in a suit requiring him to discharge the initial burden of proving that the

amount of compensation determined by the Collector was inadequate.

19. Section 8(2) of Act- II of 1948 lays down that the provisions of sub-

section (2) of Section 18 and of section 19 to 22 and of section 25 to 28A of

the Land Acquisition Act, 1894 and the principles set out in sub-section (1)

and in clause (a) of sub-section (2) of section 7 of this Act, shall, so far as

they may be applicable, apply in respect of any reference made to the Court

under sub-section (1).

20. Section 19(1)(d) of Act-I of 1894 provides that in making the

reference, the Collector shall state, for the information of the Court, in

writing under his hand, ----- if the objection be to the amount of

compensation, the grounds on which the amount of compensation was

determined.

21. Both Mr. Dutta and Mr. Bera made claim and rival claim

regarding compliance of Section 19(1)(d) of Act -I but no document has been

produced to show that requirement of Section 19(1)(d) of Act -I was complied

with. In case of State of W.B. v. Secretary, Union Club, Purulia (supra), it was

ruled that if the Collector omits to state the grounds on which the amount of

compensation was determined, the onus of the referring claimants is

negligible.

22. In many cases, it is seen that there is apathy in adducing evidence

by the Collector and there is blatant lapse on the part of counsel for the

State to cross-examine the witnesses on material point and on the other

hand, some sale instances i.e. deeds of sale are produced in Court but

neither the vendor nor the vendee of any deed is or are examined despite of

having knowledge that Section 51A of Act-I of 1894 merely dispenses with

the production of original sale deed and it does not dispense with the

requirement of examination of vendor and vendee to prove that the

transaction was genuine. Now, question is what the reference Court, which

is enjoined to answer the reference, will do in such circumstances.

23. If no evidence is adduced by the Collector, the Court shall

carefully scrutinise the evidence adduced by the claimants and determine

the just compensation [See the case of Hookiyar Singh v. Spl. LAO reported

in (1996) 3 SCC 766] and in absence of oral evidence adduced by either of

the parties, Courts are to draw inference from their experience the normal

human conduct of the parties and bona fide and genuine sale transactions

are guiding star in evaluating the evidence. [See the case of Spl. Dy Collector

v. K.P. Sambasiva Rao reported in AIR 1997 SC 2625].

24. So, from the discussions made hereinabove, we have no qualm to

hold that the learned Court below erred in taking into account the sale

instances relied upon by the Collector and the Court was required to base

upon the evidence produced before it. In such circumstances, Court is to

consider the effect of entire evidence placed before it and in such situation,

Court shall have no other alternative but to base upon the deeds being the

only documentary evidence, produced by the referring claimants.

25. However, in the case at hand, admittedly, no evidence has been

adduced on behalf of the Collector and referring claimants produced seven

deeds and mouza map which have been admitted in evidence as Ext.1 to 8

and in cross-examination, he could not detail the date of acquisition, date of

award, date of possession and exact location of lands under acquisition in

mouza map and no vendor or vendee in respect of any sale instance has

been produced on dock.

26. Referring claimants produced seven deeds, marked as Ext.-1 to 7.

Deeds, marked as Ext. 1 to 6 were executed and registered in between June,

1996 to November, 1996 and Ext.-7, deed no. 5080 was executed on

29.9.1995. Nature of lands were Sali and those lands situated in the same

Mouza, namely, Sulangari. When any deed or deeds are produced as

comparable sale instance or instances, Court shall check the proximity from

time angle and proximity from situation angle. In the given case, lands

under acquisition were located in Sulangari Mouza appertaining to plot nos.

542 to 679 and hence, it can be argued that transactions based by the

referring claimants have proximity in respect of time angle and situation

angle also.

27. Referring claimants produced deeds regarding plot nos. 621, 701,

724, 288, 269, 328 & 105 of same mouza and Ext.-1 shows that plot no.

621 was sold at Rs.25,200/- per cottah whereas deeds being Ext.2 to 6

show that plots of lands pertaining to these were sold at Rs.20,000/- per

cottah whereas plot no. 105 was sold at Rs.23,151/- per cottah and from

Ext.-1 to 7, it would be reflected that from 2 cottahs to 4 cottahs of land in

the same mouza were transferred.

28. So, average of all those consideration monies reflected from Ext.1

to 7 would be Rs.21,193/- per cottah. In such sequence of facts, we are of

the view that it would suffice if market value of Sali land under acquisition

is assessed at Rs.22,000/- per cottah. Learned Court below has assessed

the value of Doba @ 2/3rd of Sali land. As per Parks' Principle and Practice of

Valuation, Courts adopted a method of valuing tanks at one-half the value of

solid land but in case of State of W.B. v. Ganesh Chandra Mitra & Ors.

(supra), in absence of proper materials enabling the Court to determine the

value of the tank in a logical and scientific manner, the Court refused to

accept such method. In the given case, Collector himself assessed the value

of Doba @ ½ of the value of Sali land. Upon consideration of such

assessment made by the Collector himself, we are inclined to assess the

market value of Doba @ ½ of Sali land i.e. Rs.11,000/- per cottah.

29. Section 7 of Act- II of 1948 lays down that the amount of

compensation shall be determined in the manner and in accordance with

the principles set out in sub-section (1), (1A) and (2) of Section 23 of Act-I of

1894. As per Section 23(1A) of Act -I of 1894 Court has awarded interest @

12% p.a. on the market value from the date of notification till the date of

award. Court has awarded solatium as per Section 23(2) of Act -I of 1894.

Reference Court has taken recourse of Section 28 of Act-I of 1894 and

awarded interest. Collector awarded rental compensation @ 6 % p.a. from

the date of possession till the date of notification.

30. Section 28 of Act -I of 1894 has empowered the reference Court to

award interest on excess amount @ 9% p.a. from the date of possession to

the date of payment of such excess amount and proviso of Section 28

speaks that if such excess amount is paid after expiry of one year, then

reference Court may award interest on excess amount @ 15 % p.a. from the

date of expiry of one year to the date of payment.

31. Section 34 of Act -I of 1894 lays down that when amount of

compensation has not been paid on or before taking possession of the land,

the Collector shall pay the amount awarded with interest @ 9% p.a. from the

date of taking possession till the date of payment and if such compensation

is not paid or deposited within a period of one year from the date of taking

possession, then interest @ 15% p.a. shall be awarded on amount of

compensation from the date of expiry of one year till the date of payment

and/or deposition.

32. In repetitive judgments, it was ruled that where a large block of

land is required to be valued, appropriate deduction is to be made for

curving out roads, for leaving open spaces and for marking out smaller plots

suitable for construction of buildings. The extent of area required to be set

apart in this connection has to be assessed by the Court having regard to

the shape, size and situation of the concerned block of land. However, there

cannot be any hard and fast rule. It is essentially a question of fact

depending on the facts and circumstances of each case.

33. Record reveals that 11.42 acres of Sali land and Doba

appertaining to ten numbers of plots belonging to referring claimants were

acquired and the Collector deducted 10% of market value. Possession of the

lands were taken in 1988 and those lands were developed and then

notification was issued in December, 1996. Learned Court below did not

deduct any amount on the premise that where the lands situated in

developed area suitable for construction of building and having all amenities

such as roads, drainage, electricity, communication etc., then deduction

only for the reason that it is part of the large chunk of land would not be

justified moreso when possession of the land was taken in 1988 and

notification was published in 1996. We do not find any error in such

approach of the learned Court below. Admittedly, judgments relied upon on

behalf of the State have unquestionable value of the proposition laid down

therein but those judgments shall not come in aid of the appellant.

34. In such conspectus, we direct as follows:

i) the market values of Sali land and Doba are assessed at

Rs.22,000/- per cottah and Rs.11,000/- per cottah respectively;

ii) Claimants shall get interest @ 12 % p.a. on such market value

from the date of notification to the date of award;

iii) Claimants shall get Solatium @ 30% on such market value as

per Section 23(2) of Act -I of 1894;

iv) Claimants shall get interest as per Section 28 of Act-I of 1894

i.e. the claimants shall get interest @ 9% p.a. on excess amount

from the date of possession till the date of payment of award in

the Court and claimants shall get interest @ 15% p.a. on excess

amount from the date of expiry of one year till the date of

payment of award;

v) Claimants shall also get amount awarded with interest @ 9%

p.a. from the date of taking possession till the date of payment

award and interest @ 15% p.a. shall be awarded on amount of

compensation from the date of expiry of one year till the date of

payment as per Section 34 of Act -I of 1894.

35. In conclusion, the appeal preferred by the State being FA 51 of

2023 is dismissed. The cross-objection being C.O.T. no. 16 of 2019 preferred

by the referring claimants is allowed in part. The impugned judgment and

decree are, accordingly, modified. Parties to bear their own costs.

36. The appellant is directed to calculate the compensation in terms of

this judgment and to make payment of such compensation to the referring

claimants within three months from date after adjusting the amounts

already received by the referring claimants from the learned Registrar

General, High Court, Calcutta.

37. Let a decree be drawn up, accordingly.

38. Let a copy of this judgment along with LCR be sent down to the

learned Court below forthwith.

39. Urgent Photostat copy of this judgment, if applied for, shall be

granted to the parties as expeditiously as possible, upon compliance of all

formalities.

(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)