The Union Of India vs Sri Pradip Das
2024 Latest Caselaw 1105 Tri

Tripura High Court

The Union Of India vs Sri Pradip Das on 9 July, 2024

                    HIGH COURT OF TRIPURA
                           AGARTALA
                     L.A.APP.No.31 of 2024

The Union of India,
represented by the 2nd in Commandant
for Commandant H.Q.,6 Bn, BSF, Fatikcherra,
Mohanpur, District-West Tripura

                                    ----Appellant-Opposite Party(s)

                                Versus

1. Sri Pradip Das,
son of Late Mani Bhusan Das

2. Sri Krishna Kanta Das,
Son of Late Mani Bhusan Das

3. Sri Keshab Kumar Das,
son of Late Mani Bhusan Das

4. Smt. Uma Das,
daughter of Late Mani Bhusan Das
wife of Sri Badal Roy Sarkar

5. Smt. Purnima Das,
daughter of Late Mani Bhusan Das
wife of Sri Sushanta Roy

all are represented by Sri Pradip Kumar Das,
son of Late Mani Bhusan Das of Jagatpur,
P.O. Abhoynagar, P.S. East Agartala, District-West Tripura

(The Referring Claimants No.1 is their constituted Attorney)

                                         ----Respondent-Claimant(s)

6. L.A. Collector, West Tripura, Agartala

----Respondent (s)

For Appellant(s) : Mr. B. Majumder, DSGI.

For Respondent(s)           :     Mr. S.S. Debnath, Adv.
                                  Mr. D.S. Kunwar, Adv.
Date of Hearing             :     05.07.2024
Date of delivery of
Judgment & Order            :     09.07.2024
Whether fit for reporting   :     YES




                 HON'BLE MR. JUSTICE BISWAJIT PALIT
                               Judgment & Order

This is an appeal under Section 54 of the Land Acquisition

Act challenging the judgment and award dated 25.07.2023 passed in

connection with Case No.Misc.(L.A.)196 of 2014 delivered by Learned

Land Acquisition Judge, Court No.1, West Tripura, Agartala.

2. Heard Mr. B. Majumder, Learned DSGI appearing for the

appellant and Mr. S.S. Debnath, Learned counsel appearing for the

claimant-respondent Nos.1 to 5 and also Mr. D.S. Kunwar, Learned

counsel appearing for the respondent No.6, L.A. Collector.

3. In course of hearing of argument, Learned counsel for the

appellant submitted that the Learned L.A. Judge without application of

proper mind has determined/assessed the market value of the acquired

land @ Rs.25,00,000/- per kani for which the judgment/award needs to

be set aside. Learned counsel for the appellant in course of hearing

referred para Nos.19, 22, 23, 24 & 26 of the judgment and submitted

that the referring-claimants in support of their claim could not adduce

any satisfactory documents i.e. the sale deeds for proper determination

of the compensation and the Learned L.A. Judge without any basis and

without any reasoning and finding has determined the market value @

Rs.25,00,000/- per kani. Referring para-22 of the judgment he

submitted that the sale instance (Exbt.4) appears to be executed in the

year 2001, but the notification for acquisition of land was published in

the year 2011 i.e. 9 years after the date of execution of the sale deed in

question. So, there was no scope to place any reliance upon that

document.

4. Referring para Nos.23 & 24, Learned counsel for the

appellant submitted that on perusal of paper book and also on perusal of

the said document i.e. Exbt.2 the same was nothing but a general power

of attorney wherein Learned Court below in the judgment/award

mentioned that it was a sale deed. Thus, it is clear that without

application of proper mind he has delivered the judgment.

5. Finally, in para No.26 according to the Learned counsel for

the appellant the Learned L.A. Judge without any reasoning and finding

has assessed the market value of the acquired land @ Rs.25,00,000/-

per kani. So, Learned counsel for the appellant urged for setting aside

the award delivered by the Learned L.A. Judge.

6. Learned counsel for the appellant further submitted that the

land of Exbt.4 is 'vastu' class of land and the acquired land was 'nal'

class of land which are totally different and no site plan or map is proved

by the respondent-claimants before the Learned Court below to

substantiate that the same was nearby the original land for which this

cannot be compared as a sale instance in determination of the market

price of the acquired land.

7. On the other hand, Learned counsel for the referring-

claimants drawn the attention of the Court that initially on the claim of

the referring-claimants i.e. the respondent herein Learned L.A. Judge

passed an award determining the market value of the acquired land @

Rs.35,00,000/- per kani and challenging that award, the present

appellant preferred an appeal before the High Court which was

numbered as L.A.53 of 2020 and this High Court after hearing a batch of

matters in L.A. appeals by a common judgment remanded back the

matter to the Learned L.A. Judge by the judgment and award dated

22.02.2023 with a direction to rehear the matter and to pass a reasoned

judgment in accordance with law within a period of 6(six) months after

appreciating the evidence on record and accordingly, the Learned L.A.

Judge passed a fresh judgment on 25.07.2023 against which the present

appeal is preferred by the appellant.

8. I have heard arguments of both the sides and gone through

the records of the Learned Court below. It appears that on a reference

under Section 18 of L.A. Act Misc.(L.A.)Case No.196 of 2014 was

registered before the L.A. Judge, West Tripura, Agartala, Court No.1

whereas both the parties have submitted their claim statement and their

counter statement and after taking evidence on record Learned L.A.

Judge passed an award/judgment. Initially, award was passed

determining the market price @ Rs.35,00,000/-per kani which was

challenged in appeal and this High Court as already stated was pleased

to set aside the judgment and remanded back the matter to the Learned

L.A. Judge with a direction to pass a fresh judgment after appreciating

the evidence on record and accordingly, the judgment was passed.

9. In the case at hand, land measuring 0.94 acres classified as

'nal' under mouja-Ramnagar, Sheet No.2/p, recorded in khatian No.3121

comprising in C/S plot Nos.4384, 4301, 4218, 4213/p and 4304

belonging to the referring-claimants were acquired by the government

for the purpose of establishment of BOP ACP of 6 Bn. BSF under Sadar

Sub-Division, West Tripura District vide notification No.F.09(02)-

REV/ACQ/VI/11 dated 21.02.2011. The referring-claimants were

represented by their constituted attorney No.1 by submitting a General

Power of Attorney. The L.A. Collector in determining the compensation

assessed the market value of the acquired land @ Rs.37,50,000/- per

acre and also assessed additional compensation @ 30% solatium and

interest @ 12% per annum w.e.f. 24.02.2011 to 22.07.2011 for a period

of 149 days and assessed the total amount of compensation amounting

to Rs.47,55,177/-. As the claimants were dissatisfied with the award of

the L.A. Collector so they submitted an application before the Learned

L.A. Collector for referring the matter before the L.A. Judge for

determination of compensation as per prevailing market price of the

acquired land. The matter was accordingly come up before the Learned

L.A. Judge and the case was registered and both the parties submitted

their claim statement and counter-statement. Before the Learned L.A.

Judge one of the referring-claimants namely Sri Pradip Kumar Das was

examined as P.W.1 and he relied upon some documents General Power

of Attorney dated 06.03.2019 (8 sheets) which was marked as Exbt.2 to

Exbt.2(vii), the copy of sale deed bearing No.1-1597 dated 25.02.2015

(9 sheets) marked as Exbt.3 to Exbt.3(viii), the copy of sale deed no.1-

9625 dated 12.11.2001 (4 sheets) marked as Exbt.4 to Exbt.4(iii). From

the side of the L.A. Collector one Debananda Debbarma, Senior

Government Surveyor was examined and from the requiring Department

one witness namely Sri K. Nath, Head Constable (Ministerial), Office of

the Commandant 120 Bn. BSF, Fatikcherra, Tripura was examined as

OPW-2. No documentary evidence was adduced by the opposite parties

to substantiate their pleadings. Finally, on the basis of evidence on

record, Learned L.A. Judge determined the market value of the acquire

land @ Rs.25,00,000/- per kani by the judgment/award dated

25.07.2023.

10. I have gone through the para Nos.19, 20, 23 & 24 of the

judgment it appears that the Learned Tribunal below did not rely upon

Exbt.3 i.e. the sale deed of the year 2015 as it was four years later from

the date of notification of acquisition. So, Learned Tribunal below did not

consider the same. Rather, Learned Tribunal below relied upon Exbt.4

i.e. sale deed of the year 2001 which was executed almost nine years

prior to the date of notification of acquisition. In para Nos.23 & 24

Learned Tribunal below relied upon Exbt.2 but factually on perusal of

records it appears that the same was a General Power of Attorney, not a

sale deed. It is not clear how the Learned Tribunal below referred Exbt.2

in paras-23 & 24 of the judgment, there was no explanation in this

regard. Exbt.2 was a General Power of Attorney which was executed by

Sri Krishna Kanta Das, Sri Keshab Kumar Das, Smti. Uma Das and Smti.

Purnima Das in favour of one Sri Pradip Kumar Das. Thus, it appears

that the Learned Tribunal below either misconstrued the said exhibited

document or did not apply the mind at the time of delivery of the

judgment properly in referring the document as Exbt.2.

11. In course of hearing of argument, Learned Counsel for the

appellant relied upon two citations. In Shaji Kuriakose and Another

versus Indian Oil Corporation Ltd. and Others reported in (2001) 7

SCC 650 the Hon'ble Apex Court in para No.3 observed as under :

"3. It is no doubt true that courts adopt comparable sales Method of valuation of land while fixing the market value of the acquired land. While fixing the market value of the acquired land, Comparable Sales Method of valuation is preferred than other methods of valuation of land such as Capitalisation of Net Income Method or Expert Opinion Method. Comparable Sales Method of valuation is preferred because it furnishes the evidence for determination of the market value of the acquired land at which a willing purchaser would pay for the acquired land if it has been sold in open market at the time of issue of notification under Section 4 of the Act. However, Comparable Sales Method of valuation of land for fixing the market value of the acquired land is not always conclusive. There are certain factors which are required to be fulfilled and on fulfilment of those factors the compensation can be awarded, according to the value the land reflected in the sales. The factors laid down" inter alia are :

(1) the sale must be a genuine transaction, that (2) the sale deed must have been executed at the time proximate to the

date of issue of notification under Section 4 of the Act, that (3) the land covered by the sales must be in the vicinity of the acquired land, that (4) the land covered by the sale must be similar to the acquired land and that (5) the size of plot of the land covered by the sales be comparable to the land acquired.

If all these factors are satisfied, then there is no reason why the sale value of the land covered by the sales be not given for the acquired land. However, if there is a dissimilarity in regard to locality shape, site or nature of land between land covered by sales and land acquired, it is open to Court to proportionately reduce the compensation for acquired land than what is reflected in the sales depending upon the disadvantages attached with the acquired land. In the present case, what we find is that the first two factors are satisfied. The sale transaction covered by the sale Ex. A-4 is genuine, inasmuch as sale was executed in proximity to the date of notification under Section 4 of the Act. However, there is a difference in the similarity in the land acquired and the land covered by Ex. A-4. The land covered by Ex. A-4 is situated at Kottayam and Ernakulam, PWD Road, whereas the acquired land is situated at a distance of 3 furlong from the main road. There is no access to the acquired land and there exists only an internal mud road which belonged to one of the claimantsss, whose land has also been acquired. Further, the land covered by Ex. A-4 is a dry land and whereas the acquired land is a wet land. After acquisition, the acquired land has to be re-claimed and a lot of amount would be spent for filling the land. Moreover, the land covered by Ex. A-4 relates to a small piece of land which do not reflect the true market value of the acquired land. It is often seen that a sale for a smaller plot of land fetches more consideration than larger or bigger piece of land. For all these reasons, the High Court was fully justified in lowering the rate of compensation that what was the market value of the land covered by Ex. A-

4. We therefore, do not find any infirmity in the judgment of the High Court. "

In Karnataka Urban Water Supply and Drainage Board

and Others versus K.S. Gangadharappa and Another reported in

(2009) 11 SCC 164 the Hon'ble Apex Court in paras-9 & 10 observed

as under :

"9. It is right as contended by learned counsel for the respondents that deductions can be made for development. But the deductions have to be made from some definite figure. In the instant case the High Court has not indicated any basis but has come to an abrupt conclusion that the claim of the owners for enhancement has to be accepted but not for Rs.9,00,000/- per acre as claimed but at Rs.4,00,000/- per acre. Market value has a definite concept and it cannot be evaluated without any foundation or basis.

10. In the circumstances we set aside the impugned judgment of the High Court to decide the matter afresh and indicate a basis for fixation of market value at a definite figure. The appeals are allowed to the aforesaid extent."

Referring the same, Learned counsel for the appellant drawn

the attention of the Court that the Hon'ble Apex Court has given certain

parameters in determining the amount of compensation in respect of the

acquired land which the Learned Tribunal below consider in this case at

the time of delivery of judgment for which the interference of the Court

is required by setting aside the judgment of the Learned Tribunal below.

12. I have perused the record of the Learned Tribunal below very

carefully. It appears that at the time of determination of compensation in

respect of the present case Learned Tribunal below relied upon Exbt.4

i.e. the sale deed of the year 2001 which was almost about nine years

earlier prior to the date of notification in the year 2011. Furthermore, in

the said deed the quantum of land has been shown as the 'vastu' viti

class of land whereas in the present case, the acquired land of the

referring-claimants was nal/paddy land which is apparent from the

judgment of the Learned Tribunal below. So, in view of the principle of

law laid down by the Hon'ble Apex Court in the aforenoted cases it

appears that the Learned Tribunal below without application of proper

mind and without considering all the above factors determined the

amount of compensation in respect of the acquired land without

assigning any justified grounds/reasons @ Rs.25,00,000/- per kani for

which in my considered view the judgment/award of the Learned

Tribunal below suffers from perversity. So, it appears that the matter

again needs to be remanded back to the Learned Tribunal below again

either to take fresh evidence of both the sides or to re-appreciate the

evidence on record properly and to deliver the judgment afresh. At the

time of determination of the judgment, Learned Court below should

consider the following factors :

(1) the sale must be a genuine transaction. (2) the sale deed must have been executed at the time proximate to the date of issue of notification under Section 4 of the Act.

(3) the land covered by the sales must be in the vicinity of the acquired land.

(4) the land covered by the sale must be similar to the acquired land.

(5) the size of plot of the land covered by the sales be comparable to the land acquired.

13. Here in the case at hand, it appears that the Learned L.A.

Judge could not consider the above factors in determining the amount of

compensation and furthermore, if it is found that the Learned L.A. Judge

relied upon Exbt.4 which was in respect of 'vastu' 'viti' class of land but

in the present case the acquired land was 'nal' class of land. So, there

was no scope on the part of Learned L.A. Judge to rely upon said Exbt.4

at the time of determination of compensation. So, it appears that in

absence of consideration of the above factors the judgment delivered by

Learned L.A. Judge needs to be set aside.

14. In the result, the appeal filed by the appellant is hereby

allowed. The judgment and award dated 25.07.2023 delivered by

Learned L.A. Judge, Court No.1, West Tripura, Agartala in connection

with Misc.(L.A.)196 of 2014 is hereby set aside. The case is remanded

back to the Learned L.A. Judge with a direction either to take fresh

evidence of both the parties after hearing Learned counsels for the

parties or to re-appreciate the evidence already on record and to deliver

a fresh judgment after considering the above factors within a period of

3(three) months from the date of receipt of a copy of the

judgment/order.

Learned counsel of both the parties be asked to appear

before the Learned L.A. Judge on 19.07.2024.

Draw the decree accordingly.

Send down the LCRs along with a copy of the judgment

immediately.

It is necessary to mention here that initially the appellant

submitted a Demand Draft of Rs.71,63,949/- vide No.489377 dated

08.03.2021 in pursuance of order dated 17.11.2020 passed in I.A.No.01

of 2020 (stay petition) arising out of L.A. App.No.53 of 2020 and

thereafter, as per order of the Court, 50% of the aforesaid amount was

released in favour of the referring-claimants by this Court and the

remaining amount is lying with the Registry. So, the balance amount

would remain with the Registry till disposal of the case by the Learned

L.A. Judge as per judgment of this Court or any further order thereof.

The case is thus disposed of.

Pending application/s, if any, also stands disposed of.

JUDGE

Date: 2024.07.11 13:02:34 +05'30'