The Managing Director vs Sri Ajoy Das
2023 Latest Caselaw 235 Tri

                                   Page 1 of 9


                      HIGH COURT OF TRIPURA
                         A_G_A_R_T_A_L_A
                         L.A. App. No.69 of 2021

1.    The Managing Director, TIDC, Industry Building, 3rd Floor,
      Gurkhabasti, Police Station, New Capital Complex, West Tripura.

                                                             .....Appellant

                                -V E R S U S-

1.    Sri Ajoy Das, son of late Haripada Das, resident of Das Para, East
      Champamura, P.S. East Agartala, District: West Tripura.

2.    Basanti Rani Das, wife of Sri Manik Das, daughter of late Haripada
      Das, of Badharghat, P.O. S.D. Mission, Agartala, West Tripura.

3.    Jayanti Bala Das, wife of Sri Ratan Das, daughter of late Haripada
      Das, of Dukli, P.O. Anandanagar, Near Maheshkhola, Gram
      Panchayet, District: West Tripura.

4.    Bijoy Kr. Das, son of late Haripada Das, resident of Das Para, East
      Champamura P.S. East Agartala, District: West Tripura.
                                                          .....Respondents.

5. The L.A. Collector, West Tripura District, Agartala.

.....Pro-forma-respondent.

                         B_E_F_O_R_E
               HON'BLE THE CHIEF JUSTICE [ACTING]

For Appellant(s)            :      Mr. B. N. Majumder, Sr. Advocate.
                                   Mr.T. Chakraborty, Advocate.
For Respondent(s)           :      Mr. Kundan Pandey, Advocate.
Date of hearing and delivery
of judgment and order       :      24.03.2023
Whether fit for reporting :        NO

                     JUDGMENT & ORDER [ORAL]

Heard B. N. Majumder, learned senior counsel assisted by Mr. T. Chakraborty, learned counsel appearing for the appellant. Also heard Mr. Kundan Pandey, learned counsel appearing for the respondents.

[2] This appeal has been filed under Section-54 of the Land Acquisition Act, 1894, read with Order-XLI of Civil Procedure Code, 1908 against the judgment and award dated 11.06.2019 passed by the learned L.A. Judge, Court No.4 West Tripura, Agartala in connection with Case No. Misc (LA) 33 of 2016.

[3] The brief facts behind this appeal are that the appellant is instrument of the State and certain lands were acquired by the Government. Thereafter, reference was made in the instant case. The learned Reference Judge vide judgment and award dated 11.06.2019, in case No. Misc(LA) 33 of 2016 enhanced the amount from Rs.3,75,000/- per acre i.e. Rs.1,50,000/- per kani for the acquired tilla class of land measuring 1.52 acre @ Rs.1,75,000/- per acre i.e. Rs.70,000/- per kani for acquired lunga class of land measuring 0.2400 acres to Rs.5,00,000/- (Rupees five lakhs) per kani. Hence, the present appeal has been filed by the appellant herein.

[4] Mr. B. N. Majumder, learned senior counsel assisted by Mr. T. Chakraborty, learned counsel appearing for the appellant has submitted that the compensation of the acquired land was assessed by the learned L.A. Collector @ Rs.3,75,000/- per acre i.e. Rs.1,50,000/- per kani for the acquired tilla class of land measuring 1.52 acre @Rs.1,75,000/- per acre i.e. Rs.70,000/- per kani for acquired lunga class of land measuring 0.2400 acres. In total, Rs.8,96,365/- was awarded as compensation for the acquired land. In the reference-sheet total compensation mentioned as Rs.8,89,965/- without cost of surface damage i.e. Rs.6,400/-.

[5] Being aggrieved by and dissatisfied with the land valuation, the claimant approached before the appropriate forum for the re-assessment of the market value. The reference case was registered as case No. Misc.LA. 33 of 2016 and was tried by the Court of the learned L.A. Judge, Court No.4, West Tripura, Agartala.

[6] After the trial, the learned Reference Judge passed the judgment and award dated 11.06.2019 whereby, it has been observed that the compensation was enhanced to the rate of Rs.5,00,000/- per kani. He was also

made entitled to get 30% solatium and 12% additional compensation on the enhanced rate as per statute. The enhanced value of land, solatium and additional compensation @12% shall form the total award. The referring claimant is also entitled to get 9% interest on the total award from the date of taking over the possession for one year and thereafter @15% interest per annum till the date of payment of enhanced compensation. The amount so paid earlier, if any, as compensation under the L.A. Act shall be adjusted with the amount awarded by way of enhancement.

[7] Mr. Majumder, learned senior counsel appearing for the appellant has submitted that the impugned judgment and award suffers from illegality. The learned Court below has erred in both facts and law. The impugned award is based on perverse findings and therefore interference of this Court is inevitable. The learned Court below did not consider the fact that the land measuring 1.76 acre was tilla and lunga class of land and was situated far from the main road as well as the market.

[8] He has further submitted that the learned Court below did not consider that the land acquired did not have amenities of modern facilities like electricity, water, supply, telephone, post office, market school, hospital and government offices etc. It has also not been appreciated that the Land Acquisition Department determined the land rates only basing on available sale deeds collected from radius areas. The learned Reference Court failed to appreciate that every judgment must be read as applicable to the particular facts proved, or assumed to be proved. A case is only an authority for what it actually decides.

[9] The learned Court below should not have relied upon the judgment passed by his predecessor in case No. Misc. (LA) 37 of 2013 and has wrongly held that the land relating to case No. Misc.(LA) 37 of 2013 is completely different and also not under the same area. Even in the same village or locality, no two lands command the same market value. The value of lands shall be determinable depending on many factors.

[10] Mr. Majumder, learned senior counsel his pin pointed argument was on the market value. Determination, principles and doctrine of equality in determination and payment of same compensation to all claimants covered by the same notification is not a good principle. Treating entire village as one unit and uniformly determining compensation on that basis is not sustainable. The Court must determine the market value prevailing as on the date of notification under Section-4(1) and not what was claimed by the parties. Even estimate of claimant is not decisive; the status of the claimant is not relevant.

[11] In support of his case, he has placed his reliance upon a decision of the Hon'ble Apex Court in Basant Kumar and Others v. Union of India and Others, reported in (1996) 11 SCC 542, wherein, the Court has held as under:

"5. Shri N.C. Jain, the learned senior counsel appearing for the appellants, contended that in RFA No. 55/70 Raghuvir Singh v. Union of India arising out of the same notification, another Division Bench of the High Court had determined the compensation at the rate of Rs. 8700/- per bigha and less Rs. 500 per bigha for the notified lands; and similar was the view taken by another Bench of that Court in LPA No. 137/80 and batch decided on April 19, 1991 titled Chet Ram and Ors. v. Union of India. All these lands being situated in the same village, the appellants are also entitled to the same rate of compensation. The Union of India had not filed any appeals against those cases. The lands are possessed of same potential value and, therefore, the appellants are entitled to the same compensation. We had adjourned the case on the last occasion, as no one appeared for the Union of India; Since, even today, no one is appearing for the Union of India, we have taken assistance of Shri Jain and have waded through the entire material evidence. The question is: whether the appellants are entitled to the same compensation as was determined by the High Court in the appeals arising out of Raghubir Singh's case and Chet Ram's case? It has been firmly settled law by deed role of decisions of this Court that the Judge determining the compensation under Section 23(1) should sit in the arm chair of a willing prudent purchaser in an open market and see whether he would offer the same amount proposed to be fixed as market value as a willing and prudent buyer for the same or similar land, i.e., land possessing all the advantageous features and of same extent. This test should always be kept in view and answer affirmatively, taking into consideration all relevant facts and circumstances. If feats of imagination are allowed to sway, he out steps his domain of judicial decision and lands in misconduct amenable to disciplinary law. We have gone through the record and judgments in Chet Ram's case and Raghuvir Singh's case decided by the two Division Benches. The learned Judges have adopted the principle that the entire

lands in the village shall be treated as one unit and the compensation shall uniformly be determined on that basis. The principle is wholly unsustainable on that basis. The principle is wholly unsustainable in law and cannot be a valid ground for determination of compensation. It is common knowledge that even in the same village; no two lands command same market value. The lands abutting main road or national highway command higher market value and as the location goes backward, market value of interior land would be less even for same kind of land. It is a settled legal position that the lands possessed of only similar potentiality or the value with similar advantages offer comparable parity of the value; It is common knowledge that the lands in the village spread over the vast extent. In this case, it is seen that land is as vast as admeasuring 1669 bighas, 18 biswas of land in the village. So, all lands cannot and should not be classified as possessed of same market value. Burden is always on the claimant to prove the market value and the Court should adopt realistic standards and pragmatic approach in evaluation of the evidence. No doubt, each individual have different parcels of the land out of that vast land. If that principle is accepted, as propounded by the High Court, irrespective of the quality of the land, all will be entitled to the same compensation. That principle is not the correct approach in law. The doctrine of equality in determination and payment of same compensation for all claimants involved in the same notification is not good principle acceptable for the aforestated reasons when both the lands are proved to be possessed of same advantages, features etc., then only equal compensation is permissible."

[12] In view of above and after gone through the evidence on record and also the observation made by the Hon'ble Apex Court, I am of the opinion that it is common knowledge that even in the same village, no two lands command same market value. The lands abutting the main road or national highway command higher market value and as the location goes backward, market value of interior land would be less even for the same kind of land. It is a settled legal position that the lands possessed of only similar potentiality or the value with similar advantages offer comparable parity of the value. it is common knowledge that the lands in the village spread over the vast extent. So, all lands cannot and should not be classified as possessed of same market value. Burden is always on the claimant to prove the market value and the Court should adopt realistic standards and pragmatic approach in an evaluation of the evidence. The doctrine of equality in determination and payment of same compensation for all claimants involved in the same notification is not a good principle.

[13] What has to be determined is the market value prevailing as on the date of notification published under Section-4(1) but not what was claimed by the parties even pursuant to notice under Section-10 or its reference under Section-18 or grounds of appeal under Section-54. Prior to amendment Act-68 of 1984 under Section-22(1), the Court had no power to grant higher than was claimed under notice in Section-9 and 10. But now, it stood deleted. Even the estimate of the market value given by the claimant is not decisive.

[14] If the land is already developed then what has to be seen is the nature of development and money expanded by the developer and as to what was the market value prevailing on that basis as on the date of notification and what was the situation of the acquired land on that date; all these and other relevant facts have to be taken into consideration and then market value should be determined. Merely because a land is developed or developing land, it would not be that some compensation is to be adopted to determine the market value for the entire land as a developed land. If it is to be developed, it is a settled legal position that at least 1/3rd of the compensation has to be deducted towards providing amenities, like roads, parks, electricity, sewage, water facilities etc.

[15] It is settled legal position that if the land is already developed then what has to be seen is the nature of the development and money expanded by the developer and as to what was the market value prevailing on that basis as on the date of notification and what was the situation of the acquired land on that date; all these and other relevant facts have to be taken into consideration and then market value should be determined.

[16] It will also decide the question, after affording parties opportunities to lead necessary evidence, whether the judgment, sought to be offered as additional evidence, could be admitted in Printer House Pvt. Ltd. v. Mst. Saiyadan (Deceased) By Lrs. & Ors. reported in (1994) 2 SCC 133, the Court considered value of previous awards it was held:

"16. If the comparable sales or previous awards are more than one, whether the average price fetched by all the comparable sales should form

the 'price basis' for determination of the market value of the acquired land or the price fetched by the nearest or closest of the comparable sales should alone form the 'price basis' for determination of the market value of the acquired land, being the real point requiring our consideration here, we shall deal with it. When several sale-deeds or previous awards are produced in Court as evidence of comparable sales, Court has to necessarily examine every sale or award to find out as to what is the land which is the subject of sale or award and as to what is the price fetched by its sale or by the award made therefore".

[17] If the sale is found to be a genuine one or the award is an accepted one, and the sale or award pertains to land which was sold or acquired at about the time of publication of preliminary Notification under the Act in respect of the acquired land, the market value of which has to be determined, the Court, has to mark the location and the features (advantages and disadvantages) of the land covered by the sale or the award. This process involves the marking by Court of the size, shape, tenure, potentiality etc. of the land. Keeping in view the various factors marked or noticed respecting the land covered by the sale or award, as the case may be, presence or absence of such factors, degree of presence of degree of absence of such factors in the acquired land the market value of which has to be determined, should be seen. When so seen, if it is found that the land covered by the sale or award, as the case may be, is almost identical with the acquired land under consideration, the land under the sale of the market value determined for the land in the award could be taken by the Court as the 'price basis' for determining the market value of the acquired land under consideration.

[18] If there are more comparable sales or awards of the same type, no difficulty arises since the 'price basis' to be got from them would be common. But, difficulty arises when the comparable sales or awards are not of the same kind and when each of them furnish a different 'price basis'. This difficulty cannot be overcome by averaging the prices fetched by all the comparable sales or awards for getting the 'price basis' on which the market value of the acquired land could be determined. It is so, for the obvious reason that such 'price basis' may very largely depending even no comparable sales or awards. Moreover, 'price basis' got by averaging comparable sales or awards which are not of the same kind, cannot be a correct reflection of the price which the

willing seller would have got from the willing buyer, if the acquired land had been sold in the market. For instance, in the case on hand, there are three claimants.

[19] In Karan Singh & Ors. v. Union of India reported in (1997) 8 SCC 186, the Court held that evidence has to be adduced to show similarity of the land in question to the one covered under award/judgment the Court has observed as under:

"8. Learned counsel for the appellants then urged that the High Court erroneously discarded Ext. A-11 which was an award in respect of a land at village Jhilmil Tahirpur on the ground that it was not a previous judgment of the Court. The land comprised in the award was acquired under notification issued under Section 4 of the Act on 27.7.81. By the said award, the Court awarded compensation @ Rs. 625 per sq. yds. It has earlier been seen that in the present case the notification issued under Section 4 of the Act was earlier in point of time than the notification issued for acquisition of land comprised in Ext. A-l 1. There is no quarrel with the proposition that judgments of Courts in land acquisition cases or awards given by the Land Acquisition Officers can be relied upon as a good piece of evidence for determining the market value of the land acquired under certain circumstances. One of the circumstances being that such an award or judgement of the Court of law must be a previous judgment. In the case of Pal Singh and Ors v. Union Territory of Chandigarh (1992) 4 SCC 400, it was observed thus:

But what cannot be overlooked is, that for a judgment relating to value of land to be admitted in evidence either as an instance or as one from which the market value of the acquired land could be inferred or deduced, must have been a previous judgment of Court and as an instance, it must have been proved by the person relying upon such judgment by adducing evidence aliunde that due regard being given to all attendant facts and circumstances, it could furnish the basis for determining the market value of the acquired land.

Following this decision, we hold that it is only the previous judgment of a court or an Award which can be made basis for assessment of the market value of the acquired land subject to party relying such judgment to adduce evidence for showing that due regard being given to all attendant facts it could form the basis for fixing the market value of acquired land."

[20] It is seen from the record that the Court below has not given reasons except saying that in Misc. (L.A). No.37 of 2013, the amount has been awarded as Rs.5,00,00/- per kani and being aggrieved by this judgment and award the appellant has preferred this appeal by placing reliance on the

judgment passed by the Hon'ble Apex Court stating that even if the Court below has placed his reliance upon a judgment and passed an order, the evidence needs to be appreciated and the same is missing. There is no reason in the order and there is no finding by the Court below to say that the respondents have accepted that the case is squarely covered by Misc. (L.A) No.37 of 2013.

[21] Thus, the present appeal is in challenge since the same has not been disputed by the learned counsel appearing for the respondents and this Court after perusing the order finds that the point raised by the learned counsel appearing for the appellant has weightage and accordingly, the same is set aside. The matter is remitted back to the Court below for fresh adjudication with a direction to decide the same as early as possible preferably within a period of three months from date of receipt of the copy of this order. It is further made clear that the both parties shall cooperate with the proceeding and allowed to adduce evidence, if any.

[22] In view of the aforesaid decisions and observations, the present appeal stands disposed of. As a sequel, miscellaneous applications pending, if any, shall stand closed. Send down the LCRs forthwith.

CHIEF JUSTICE [ACTING]

A.Ghosh