High Court Of Tripura vs Union Of India
2021 Latest Caselaw 1129 Tri

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                     HIGH COURT OF TRIPURA
                                 AGARTALA
                            LA APP. No.100/2018
Sri Dulal Sen, S/o Late Harimohan Sen of Vill & P.O - Hrishyamukh, P.S
- Belonia, South Tripura.
                                                       ............... Appellant(s).
                                      Vs.
1. Union of India, represented by its Home Secretary, Ministry of Home
   Affairs, Department of Home, North Block, Central Secretariat, New
   Delhi - 110 001.
2. The L. A. Collector, South Tripura, P.O & P.S - Belonia.
3.    The Project Manager(C), NBCC Limited, IBBF/JNNURM Works,
      Agartala, West Tripura.
                                            ............... Respondent(s).

                       _B_E_ F_O_R_E_
      HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY
     For Appellant(s)     : Mr. Arijit Bhowmik, Advocate,
                            Mr. Ankan Tilak Paul, Advocate,
                            Mr. S Dey, Advocate.
     For Respondent(s)    : Mr. Bidyut Majumder, Asstt. S. G.,
                            Mr. R G Chakraborty, Advocate.
     Date of hearing & judgment : 18th November, 2021.

     Whether fit for reporting     : Yes.

                         J U D G M E N T (O R A L)

From the records of this case it appears that the present appeal was

admitted by an order, dated 10th January 2019 and direction had been

issued to issue a notice to the respondents. In the meantime, learned

Assistant Solicitor General Mr. Bidyut Majumder represents the respondent Page - 2 of 13

No.1-Union of India and learned counsel Mr. H Deb represents the

respondent No.2 - Land Acquisition Collector but none appears for the

respondent No.3. From the office note, dated 16th January 2021, it appears

that notice was issued to respondent No.3 - National Buildings

Construction Corporation Ltd. (NBCC) but none had appeared on their

behalf. Accordingly, the matter proceeds for hearing.

[2] Heard learned counsel for the respective parties.

The present appeal has a chequered past. The appellant was the

owner of 0.26 acres of land which was acquired by the Union of India for

construction of Indo-Bangla border fencing. The land was located at Mouja

- Hrishyamukh under Belonia Sub-Division, South Tripura District. The

necessary notification under Section 17 of the Land Acquisition Act, 1894

(hereinafter to be referred to as "the Act") was issued by the Revenue

Department published in the local newspapers, on 12th December 2008 and

the necessary declaration under Section 6 of the Act was issued by the

Revenue Department vide order dated 13th January 2009. Proceedings were

initiated by the Land Acquisition Collector for determining the

compensation amount at the following rate :

"Viti(nal) @ Rs.40,000/- (forty thousand) p/k. Nal @ Rs.50,000/- (fifty thousand) p/k."

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Being aggrieved by the determination made by the Land

Acquisition Collector the appellant preferred a reference [L A (Reference)

No.85/2013] and the learned Land Acquisition Judge was pleased to

enhance the compensation amount by judgment dated 18th February 2014

for the value of land at Rs.2,00,000/- per kani for nal class of land and

Rs.1,80,000/- per kani for viti class of land. Apart from granting 30%

solatium and 12% interest under Section 23(1-A) of the Act, the learned L

A Judge also granted 9% interest per annum on the enhanced compensation

and solatium for a period of one year and 15% interest per annum after

expiry of one year.

[3] The appellants being aggrieved by the aforesaid order passed in

reference and seeking further enhancement of the compensation preferred L

A Appeal No.27/2014 before this Hon'ble Court. In the said appeal,

objections were raised by the learned Government Advocate to the effect

that the provisions of Section 20 of the Act had not been complied with

when the reference was decided by the learned Land Acquisition Judge,

South Tripura, Belonia. Accepting the submissions made since Union of

India had not been impleaded before the Reference Court i.e the learned

Judge who had heard the L A Appeal the impugned judgment and award Page - 4 of 13

was set aside and the matter was remanded for fresh adjudication by the

land Acquisition Judge, South Tripura, Belonia.

[4] As a consequence of the order of remand, the matter was once

again adjudicated afresh and award was delivered on 24 th July 2018

rejecting the evidence produced by the private appellant i.e. various sale

deeds as well as claims about existence of trees on the acquired land and

affirmed the order passed by the Land Acquisition Collector and the prayer

of the appellant for enhancement of compensation against the award of

Land Acquisition Collector was rejected and the Land Acquisition

Collector's award was found adequate and justified.

[5] Learned counsel for the appellant herein submits that the

impugned order suffers from lack of consideration of the adjudication made

by the Land Acquisition Judge's predecessor who had first decided the

matter on merits vide judgment & award dated 18th February 2014. In this

respect, attention was drawn by the learned counsel for the appellant in

particular to paragraphs 10, 11 and 12 of the said judgment which are

quoted hereunder :

"10. During argument learned counsel for the claimant has drawn attention to the common judgment of LA(Ref.)45/09 to55/09 of this court. He has also drawn Page - 5 of 13

attention to the common judgment dated 10.02.11 of L.A(Ref.) 38, 39, 47, 51, 53 & 60 of 2010, copy of common judgment dated 10.12.10 of L.A(Ref) 21, 25, 29, 30 & 37 of 2010 of this court.

On perusal of the common judgment dated 10.02.11 of L.A (Ref) 38, 39, 47, 51, 53 & 60 of 2010 I find that the lands acquired in all those cases falling under mouja- South Bharat Chandra Nagar, so, the decision of this court in respect of fixing the value of the said land is not applicable in the present case. But the lands in all cases in connection with common judgment dated 10.12.10 of L.A(Ref) 21, 25, 29, 30 & 37 of 2010 of this court are found relating to the lands falling under mouja -

Hrishyamukh and said lands were acquired for the purpose of construction of border fencing and those lands were acquired vide notification No.F.9(5)-

REV/ACQ/XII/07, dated 09.3.2007.

11. I have gone through the said common judgments in question and find it difficult to ignore the judgments, being relating to the land under the same mouja. In L.A(Ref.) 45/09 to 55/09, by the notification vide No.9(54)/REV/ACQ/XII/06 dated, 05.01.07 land was acquired for construction of a branch road from a spot named Sahid Bedi, a point on the Belonia to Srinagar Road to the new Fire Service Station within mouja Hrishyamukh. The market value fixed by the L.A Collector in that case was ₹10 lakhs per kani for Dokan Page - 6 of 13

class of land, ₹6 lakhs per kani for viti/bastu class of land, ₹4 lakhs per kani for pukur par class of land and ₹3 lakhs per kani for pukur. For the land located beyond 75 meters from the main road ₹4 lakhs per kani for bastu/viti/nal/chara/tilla class of land and ₹3 lakhs per kani for doba class of land.

On reference under section 18 of the Act being made, this court fixed the market value at ₹ 12 lakhs per kani for dokan class of land, ₹6.5 lakhs per kani for viti/bastu class of land, ₹4.5 lakhs per kani for pukur par class of land and ₹3.5 lakhs per kani for pukur. For the land located beyond 75 meters from the main road ₹4.5 lakhs per kani bastu/viti/nal/chara/till class of land and ₹3.5 laks per kani for doba class of land.

12. The market value as reflected above does not match at all with the market value fixed by the L.A Collector in the present case in hand. The lands being within the same mouja situated on the two sides of Belonia-Srinagar road, there cannot be so much of differences in the market value of the two lands situated both sides of the said road. Of course, the market value of the land of these cases will be comparatively less as the land was acquired for the purpose of border fencing and situated near Info-Bangla border. At the same time, it should be borne in mind that the border fencing is raised within shorter distance from zero point of border line.

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In absence of specific sale instance of the land near to the acquired land, neither the sale deeds proved in the cases nor the judgments referred to can be ignored because the same relates to land within the same mouja. Accordingly, in analogy with the common judgment dated 10.12.10 of L.A.(Ref) 21, 25, 29, 30 37 of 2010 of this court relating to the land for border fencing under the same mouja and by the said common judgment this court raised the market value and fixed @ ₹2,00,00/- per kani for nal class of land and ₹1,80,000/- per kani for viti class of land and ₹1,70,000/- per kani for chara class and ₹1,50,000/- per kani for pukur and pukur par class of land."

Learned counsel for the appellant submits that this order, dated

18th February 2014, had been set aside in the earlier appeal filed by the

appellant but not on merits and on the technical ground that the Union of

India had not been impleaded as a party in the proceeding before the Land

Acquisition Judge. He further submits that the findings noted in the earlier

judgment in the paragraphs noted above are clearly determination of facts

and law. He further submits that it was open to the Land Acquisition Judge

on remand to take a fresh view on the matter but the Land Acquisition

Judge in the impugned order after remand failed to take into consideration

the aforesaid findings and as a consequence of which rejected the reference

application of the claimant-appellant.

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[6] The learned Assistant Solicitor General appearing for the Union of

India and learned counsel appearing for the Land Acquisition Collector

supported the impugned order passed by the Land Acquisition Judge on

remand and submitted that no error had been committed by the Land

Acquisition Judge while rejecting the reference and affirming the order

passed by the Land Acquisition Collector in the case at hand.

[7] After hearing the learned counsel for the respective parties and

perusing the Paper Book, this Court is of the considered view that on

remand the learned Land Acquisition Judge while justifying in rejecting the

evidence produced by the appellant-claimants i.e especially since the sale

deeds produced by it were a very small tracks of land and the map also

relied upon by the claimants did not contain the location of the land

covered by the said sale deeds. Therefore, in the considered view of this

Court, the learned Land Acquisition Judge was correct in holding that no

documentary evidence was produced by the claimant in support of

evaluation of the land. Apart from the same, the learned Land Acquisition

Judge had also rejected the claim raised by the claimant-appellants on plea

of existence of certain trees on the land in question. On this score as well

the finding of the learned Land Acquisition Judge that no cogent evidence

was placed on record in this respect is also found to be absolutely correct.

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After taking notice of the above, this Court also is of the

considered view that it was the onerous responsibility of the Land

Acquisition Collector as well as the Land Acquisition Judge and the party

making the requisition for the land to bring on record evidence of the true

and fair value of the land that is sought to be acquired. That remains the

obligation of the requisition authority, the Land Acquisition Collector as

well as the Land Acquisition Judge. In other words, none of the authorities

are free to merely pass on the responsibility to the land loser to establish

the value of the land. The valuation of the land and the duty to pay a fair

and reasonable price to the land losers is an obligation of the statute cast on

all statutory authorities. In the case at hand, there appears to be no such

attempt made by the authorities to itself determine what is fair and

reasonable in the circumstances of this case. The methodology adopted

appears to be that as if the total onus for fixing the valuation of the land

was on the land loser and in the case at present, since the land loser who

had produced certain sale deeds had failed to discharge his duty in this

respect. Consequently, the estimate made by the Land Acquisition

Collector was affirmed. This Court regretfully records its opinion that this

ought not to have been the manner in which the proceedings should have

proceeded.

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[8] It is extremely important to take into consideration the fact that

the earlier judgment and award, dated 18th February 2014, passed by the

Land Acquisition Judge in the reference had been determined on merits and

in particular, the paragraphs which are quoted herein above. This Court

while setting aside the said award had not dealt with the merits of the case

and remanded the matter for impleading the Union of India as a party

before the learned Land Acquisition Judge. As a direct consequence

thereof, it was an obligation on the part of the succeeding Land Acquisition

Judge to take into consideration the findings of fact and law as arrived at by

his predecessor and of course, he had the discretion to either agree or

disagree with the same and to record his reasons therefore. In the case at

hand, it is clear from the impugned order passed by the Land Acquisition

Judge that he has completely ignored the earlier findings of his

predecessor.

[9] The Land Acquisition Judge earlier had taken note of the fact that

the lands in all cases in connection with the common judgment dated 10 th

December 2010 in L.A (Ref.) No.21, 25, 29, 30 & 37 of 2010 of the same

court was found relating to land falling under Mouja - Hrishyamukh and

the said lands were acquired for the purpose of construction of border

fencing and those lands were acquired under same notification dated 9th Page - 11 of 13

March 2007. Therefore, he came to a prima facie finding that the said

common judgment in the case of Mouja - Hrishyamukh cannot be ignored

and, therefore, referred to L.A (References) 45/09 to 55/09 and determined

that the Land Acquisition Collector in that case had determined a

substantial higher amount of Rs.10,00,000/- per kani for Dokan class of

land, Rs.6,00,000/- per kani for viti/bastu class of land, Rs.4,00,000/- per

kani for pukur par class of land and Rs.3,00,000/- per kani for pukur. For

land located beyond 75 meters from the main road Rs.4,00,000/- per kani

for bastu/viti/nal/chara/tilla class of land and Rs.3,00,000/- per kani for

doba class of land.

It appears that on a reference made under Section 18 of the Act

against the said order the Land Acquisition Judge Court had enhanced the

market value to Rs.6,50,000/- per kani for viti class of land and for land

located beyond 75 meters from the main road, Rs.4,50,000/- per kani for

bastu/viti/nal/chara/tilla class of land.

[10] It appears that after having taken note of all these facts in

paragraph 12, the learned Land Acquisition Judge had earlier concluded

that the market price as reflected in his order does not match at all with the

market value fixed by the Land Acquisition Collector in the present case.

Lands being within the same mouja situated on the two sides of the Page - 12 of 13

Belonia-Srinagar road, there cannot be so much of a difference in the

market value of the two lands situated on the both sides of the said road. He

further came to a finding that the market value of the land of the appellant

would be comparatively less as the land was acquired for the purpose of

border fencing and situated near the Indo-Bangla border. He directed that it

must be borne in mind that the border fencing is fixed within a short

distance from the zero point of the border line. Accordingly, he had

directed fixation of the rate at Rs.2,00,000/- per kani for nal class of land,

Rs.1,80,000/- per kani for viti class of land. In conclusion, he had

concluded that the market value of the acquired land determined by the

Land Acquisition Collector in the present case was inadequate and

therefore, it should be raised and in his considered view, the appropriate

market value of the acquired land @ Rs.2,50,000/- per kani for nal class of

land and Rs.1,80,000/- per kani for viti class of land.

[11] In the present case at hand, this Court is of the considered view

that the Land Acquisition Judge in the impugned order having ignored the

findings of fact arrived at by his predecessor who had relied upon earlier

orders passed by the Land Acquisition Judge, pertaining to land in the

selfsame Mouja i.e. Mouja - Hrisyamukh and for lands existing on two

opposite sides of a common public road, had in fact not granted the Page - 13 of 13

appellant the same amount as determined for the land on the other side of

the road and reduced the amount substantially. Consequently, in the case at

hand, I am of the considered view that the impugned order passed by the

Land Acquisition Judge in the case [L.A.(Ref.) 85/2013] dated 24th July

2018 ought to be set aside and is hereby quashed. The order and award

passed by the Land Acquisition Collector dated 13th January 2009 is

similarly quashed and the directions issued by the learned Land Acquisition

Judge in the earlier reference by its judgment dated 18th February 2014

stands restored and the appellant shall be entitled to the awarded sum as

determined by learned Land Acquisition Judge in its earlier determination.

[12] There appears to be some confusion regarding the extent to

which the appellant may be entitled to in view of partition having been

affected within their family. Therefore, the authority shall determine the

extent to which the appellant shall be entitled to. The directions passed in

earlier judgment by the Land Acquisition Judge, dated 18th February 2014,

shall be complied with forthwith.

Appeal stands allowed to the extent as indicated above. Pending

application(s), if any, also stands disposed of.

( INDRAJIT MAHANTY, CJ )

Sukehendu