The Deputy Chief Engineer ... vs Sri Ashutosh Sarkar
2024 Latest Caselaw 1157 Tri

Tripura High Court

The Deputy Chief Engineer ... vs Sri Ashutosh Sarkar on 15 July, 2024

                   HIGH COURT OF TRIPURA
                         AGARTALA
                   L.A. App. No.26 of 2023

The Deputy Chief Engineer (Construction-1),
N.F. Railway, Badharghat, Agartala.
                                                  ..........Appellant

                               Versus
1. Sri Ashutosh Sarkar
Son of Dasarath Sarkar,
P.S. Amtali, District- West Tripura.
                       ......Respondent (Referring Claimant)

As per the Hon'ble Court's order dated 20.02.2024 passed in I.A. No.03 of 2024 (petition for direction), the legal heir of respondent No.1 has been incorporated as per schedule.

2. The Land Acquisition Collector, West Tripura, Agartala ............Respondent

For Appellant(s) : Mr. B. Majumder, DSGI. For Respondent(s) : Mr. I. Chakraborty, Adv.

Date of Hearing          :     10.07.2024
Date of delivery of
Judgment and Order :           15.07.2024
Whether fit for
Reporting           :          YES

HON'BLE MR. JUSTICE BISWAJIT PALIT

Judgment &Order

This is an appeal under Section 74 of the Right to

Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013 challenging the

judgment and award dated 11.07.2022 in connection with

case No.L.A. No.109 of 2017 delivered by the Presiding

Officer, Land Acquisition, Rehabilitation and Resettlement

Authority, Tripura, Agartala.

02. Heard Learned DSGI, Mr. Bidyut Majuder,

representing the appellant and also heard Learned Counsel,

Mr. I. Chakraborty, representing the sole-respondent.

03. At this stage, Learned DSGI, Mr. Bidyut Majumder

for the appellant drawn the attention of the Court referring

para No.3 of the judgment and award delivered by the

Presiding Officer of the Land Acquisition, Rehabilitation and

Resettlement Authority, Tripura and submitted that in the

said paragraph, it was specifically mentioned that the

acquired land was land measuring was 0.300 acres classified

as 'Tilla', appertaining to Plot No.6594, Khatian No.2562

situated at Charipara Mouja, Sheet No.1 and 2/P under

Badharghat Tehsil, P.S. Amtali and referring para No.14 of

the said judgment and award. Learned Counsel further

submitted that considering the legal provisions as mentioned

in the aforesaid RFCTLARR Act, 2013, the Learned L.A.

Collector assessed the market value of the acquired land

rightly at the rate of Rs.4,50,000/- per kani (0.40 acre) but

the Learned Presiding Officer of the Land Acquisition,

Rehabilitation and Resettlement Authority without

considering the relevant provision of Section 26, enhanced

the market price of the acquired land at the rate of

Rs.11,60,000/- per kani instead of Rs.4,50,000/- per kani

which was too high.

Thereafter, Learned DSGI, Bidyut Majumder

referred para No.25 of the said judgment and submitted that

during the proceeding before the Land Acquisition,

Rehabilitation and Resettlement Authority, the claimant-

appellant relied upon sale instances which were marked as

Exhibit-1 and Exhibit-2 and the land of those sale instances

are classified as Vastu/Viti class of land and land under

Exhibit-3 was classified as Nal land but in the present case,

the land of the claimant was 'Tilla' class of land. He further

referred the said para No.25 of the judgment and submitted

that the Learned Presiding Officer of the Land Acquisition,

Rehabilitation and Resettlement Authority in the said

paragraph stated that since the lands of Exhibit-1, 2 & 3 are

not similar types of land, so, those could not be taken into

consideration and again came to the observation that the

sale instances under Exhibit-B, D & F are also classified as

Nal. So, the sale deeds also could not be taken into

consideration being not comparable with the acquired land.

Learned Counsel for the appellant, further

referred para No.26 of the judgment and submitted that

Learned Presiding Officer relied upon Exhibit-C and finally,

came to the observation that the sale instances under

Exhibit-4, A, C and E are found to be comparable instances

for determination of market value of the acquired land

subject to potential values of each sale instances. In this

regard, Learned Counsel for the appellant drawn the

attention of the Court that the said observation of the

Learned Presiding Officer of Land Acquisition, Rehabilitation

and Resettlement Authority was erroneous for which the

present appellant has preferred this appeal.

04. At the time of hearing, Learned Counsel for the

appellant again referred para No.31 of the said judgment and

submitted that the determination of compensation reducing

60% of Exhibit-4 by the Presiding Officer of Land Acquisition,

Rehabilitation and Resettlement Authority is found to be non-

application of mind and erroneous and on the basis of that

the determination of market price of acquired land cannot be

sustained in the eye of law and prayed for allowing this

appeal by setting aside the judgment and award of the

Learned Presiding Officer of Land Acquisition, Rehabilitation

and Resettlement Authority.

05. Learned Counsel for the appellant further drawn

the attention of the Court referring provision 26 of Right to

Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013 and submitted

that the Learned Presiding Officer of Land Acquisition,

Rehabilitation and Resettlement Authority failed to

appreciate the relevant provision Section 26(b) of the said

Act and gave an erroneous finding which were perverse and

urged for interference of this Court.

06. On the other hand, Learned Counsel for the

respondent-claimant, drawn the attention of the Court that

the Learned Presiding Officer of Land Acquisition,

Rehabilitation and Resettlement Authority after considering

oral/documentary evidence on record rightly determined the

value of the acquired land at the rate of Rs.11,60,000/- per

kani which is also too less. Because according to Learned

Counsel for the respondent-claimant, the acquired land is

nearby Agartala Municipality and its present market value is

much higher than the amount determined by the Presiding

Officer of Land Acquisition, Rehabilitation and Resettlement

Authority and after elaborate consideration of the relevant

provisions of law, the Learned Presiding Officer of Land

Acquisition, Rehabilitation and Resettlement Authority rightly

determined the compensation of the acquired land and

furthermore, due to filing of appeal, the referring claimant is

suffering from huge financial hardships being a poor lady and

this appeal is nothing but to drag the delay of payment in

respect of acquisition of land and urged for dismissal of this

appeal with costs.

07. Further, Learned Counsel for the claimant-

respondent, in course of hearing, submitted that the

acquired land has/had potential value and it is nearby

Agartala Municipal Corporation. In addition to that the same

is also nearby Tripura Medical College, Badharghat Rail

Station is also nearby the acquired land and furthermore,

according to Learned Counsel, the acquired land is situated

within a developing area and presently, in the said area, the

cost of any classification of land is not less than 1 crore of

rupees. But the L.A. Collector only determined the

compensation to the tune of Rs.4,50,000/- per kani which

was later on enhanced to Rs.11,60,000/-. In this regard,

Hon'ble the Supreme Court in U.P. Awas Evam Vikash

Parishad vs. Asha Ram (Dead) through Legal

Representatives and Ors. reported in (2021) 17 SCC 289,

wherein Hon'ble the Apex Court in para No.29 observed as

under:

―29. The potentiality of the acquired land is one of the primary factors to be taken into consideration to determine the market value of the land. Potentiality refers to the capacity or possibility for changing or developing into the state of actuality. The market value of a property has to be determined while having due regard to its existing conditions with all the existing advantages and its potential possibility when led out in its most advantageous manner. The question whether a land has potential value or not primarily depends upon its condition, situation, use to which it is put or its reasonable capability of being put and also its proximity to residential, commercial or industrial areas/institutions. The existing amenities like water, electricity as well as the possibility of their further extension, for instance whether near about town is developing or has prospects of development have to be taken into consideration. It also depends upon the connectivity and the overall development of the area.‖

08. After hearing both the sides, it appears to me that

there is no dispute on record in respect of acquisition of land

belonging to the referring claimant by the Requiring

Department for the purpose of construction of Akhowrah

New Rail Line Project (Indian Project) under Sadar Sub-

division of West Tripura. It is on record that the L.A.

Collector determined the market value of the acquired land

at the rate of Rs.4,50,000/- per kani. It is also on record that

the Government, i.e. the L.A. Collector acquired land

measuring 0.300 acres appertaining to C.S. Plot No.6594,

under Khatian No.2562 at Mauja- Charipara, Sheet No.1 and

2/P along with some other lands for the purpose of

construction of Akhowrah New Rail Line Project (Indian

Project). In para No.3, 14, 25 and 31 of the said judgment,

Learned Presiding Officer of Land Acquisition, Rehabilitation

and Resettlement Authority referred the following

observations:

―3. The LA Collector assessed and awarded the compensation for the acquired land of the Referring Claimant amounting to Rs.10,77,980/- (Rupees ten lakh seventy seven thousand nine hundred eighty) only and vide notice No.DM/W/LA/SDR/18/2014/3601-3768 dated 11-08-2017 asked to receive the said compensation. Being dissatisfied with amount of compensation, she asked for reference. On receiving the notice Claimant Smt. Rikta Sarkar appeared and submitted claim statement. In the claim statement she stated inter alia that she was the owner of acquired land measuring 0.300 acres classified as ‗Tilla' appertaining to Plot No.6594 under Khatian No.2562 situated at Charipara mouza, sheet No.1 & 2/p, Tehsil Badharghat P/S Amtali, District, West Tripura. According to claim statement, the acquired land is situated at ‗Mouza'. Charipara nearby the Agartala Municipal Corporation area besides Pallanpara to West Charipara pitch road. It is pleaded that all modern facilities like water supply line, electric connection, road communication, school and local offices of various deptt. Of Govt. of Tripura including TMC & Dr. B.R.M. Teaching hospital and Badharghat Railway Station are within one & half km. from the acquired land. The

acquired land which are classified as ‗nal' can be converted to viti/vastu class of land by developing the same with earth filling and minimum expenditure. At the time of acquisition the market value of the acquired land was more than Rs.1,40,00,000/- per kani and he claimed compensation amounting to Rs.1,05,00,000/-.

14. Indisputably, Govt. acquired 0.300 acre land classified as ―Tilla‖ appertaining to plot No.6594 under the khatian No.2562.

The L.A. Collector assessed the market value of acquired land @Rs.4.5 lakh per kani (0.40 acre). The Referring claimant claimed that the rate of market value determined by the LA Collector is much lower than the prevailing market value of the land in the area and entitled to get enhanced compensation. So the dispute is only about the market rate of land determined by the LA Collector.

25. Keeping in mind of the above law and the relevant facts this Authority has to consider the sale instances produced by the parties which are similar type land as acquired land of the referring claimant i.e Tilla class land. The evidence shows that the land under three sale instances produced by the claimant (Exhibit-1 and 2 are classified as bastu/viti class land and the land under Exhibit-3 is classified as ‗Nall'. Besides that, in the cross examination the claimant has admitted that on the southern side of land under sale instance bearing deed No. 1-1728 dated 22.03.2013 (Exhibit-1) and 1-1729 dated 22.03.2013 (Exhibit-2) respectively are bounded by Government Road (public road). So the above sale instances produced by the Referring claimant are not only classified are not only classified as ‗Bastu' land but also have some special advantages having its boundary of the public road. Similarly, on the western side of land of sale instance bearing deed No. 1- 1609 dated 25.08.2014 (Exhibit-3) has also a Government Road (public road).

Therefore, the land under the sale instances (Exhibit-1, 2 and 3) are not similar type of land and not comparable. Now, the sale instances under Exhibit-B, Exhibit-D and Exhibit-F are classified as ‗Nal'. Therefore, aforesaid sale instances are also not similar type of land and thus not comparable sale instances.

31. Keeping in mind to the above facts and provision in law I am of the opinion that the price of the Exhibit-4 (Sale deed No.1- 57 dated 04.01.2017) should be reduced by 60% towards the high potential value in comparison with the acquired land. In Exhibit-4 land measuring 0.050 acres was sold for Rs.6,00,000/- i.e. @

Rs.48,00,000/- per kani. If the price is reduced by 60% then the market value of land in Exhibit-4 per kani would come down to Rs.19,20,000/- (40% of Rs.48,00,000/- ). Now, we have 4 sale instances viz;

Exhibit-3 (price reduced by 60%), Exhibit- B, Exhibit-D and Exhibit-F. In view of the Explanation-2 to section 26(1) of the RFCTLARR Act, 2013 one half of the total number of sale deeds or agreement to sell in which the highest sale price has been mentioned shall be taken into account. Amongst the 4 comparable sale instances the price is Exhibit-4 and Exhibit-E are of the highest sale price. Now, the rate of the land per Kani (0.40 acre) under Exhibit-E after 60% discount/reduction stands Rs.19,20,000/- and the rate of Exhibit-F per kani is Rs.4,00,000/-. Therefore, the average price (per Kani) stands (Rs.19,20,000/- + Rs.4,00,000/-) ÷ 2= Rs.11,60,000/- which would be the reasonable market price of the acquired land.‖

09. Further, for the sake of convenience I would like

to refer herein below the relevant provision of Section 26 of

Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013:

―26. Determination of market value of land by Collector.-(1) The Collector shall adopt the following criteria in assessing and determining the market value of the land, namely:--

(a) the market value, if any, specified in the Indian Stamp Act, 1899 (2 of 1899) for the registration of sale deeds or agreements to sell, as the case may be, in the area, where the land is situated; or

(b) the average sale price for similar type of land situated in the nearest village or nearest vicinity area; or

(c) consented amount of compensation as agreed upon under sub-section (2) of Section 2 in case of acquisition of lands for private companies or for public private partnership projects, whichever is higher:

Provided that the date for determination of market value shall be the date on which the notification has been issued under Section

Explanation 1.--The average sale price referred to in clause (b) shall be determined taking into account the sale deeds or the agreements to sell registered for similar type of area in the near village or near vicinity area during immediately preceding three years of the year in which such acquisition of land is proposed to be made.

Explanation     2.--For   determining     the
average    sale    price  referred    to  in

Explanation 1, one-half of the total number of sale deeds or the agreements to sell in which the highest sale price has been mentioned shall be taken into account. Explanation 3.--While determining the market value under this section and the average sale price referred to in Explanation 1 or Explanation 2, any price paid as compensation for land acquired under the provisions of this Act on an earlier occasion in the district shall not be taken into consideration.

Explanation 4.--While determining the market value under this section and the average sale price referred to in Explanation 1 or Explanation 2, any price paid, which in the opinion of the Collector is not indicative of actual prevailing market value may be discounted for the purposes of calculating market value.

(2) The market value calculated as per sub-

section (1) shall be multiplied by a factor to be specified in the First Schedule.

(3) Where the market value under sub-

section (1) or sub-section (2) cannot be determined for the reason that--

(a) the land is situated in such area where the transactions in land are restricted by or under any other law for the time being in force in that area; or

(b) the registered sale deeds or agreements to sell as mentioned in clause (a) of sub-section (1) for similar land are not available for the immediately preceding three years;

or

(c) the market value has not been specified under the Indian Stamp Act, 1899 (2 of 1899) by the appropriate authority, the State Government concerned shall specify the floor price or minimum price per unit area of the said land based on the price calculated in the manner specified in sub-section (1) in respect of similar types of land situated in the immediate adjoining areas:

Provided that in a case where the Requiring Body offers its shares to the owners of the lands (whose lands have been acquired) as a part compensation, for acquisition of land, such shares in no case shall exceed twenty-five per cent of the value so calculated under sub-section (1) or sub- section (2) or sub-section (3) as the case may be:

Provided further that the Requiring Body shall in no case compel any owner of the land (whose land has been acquired) to take its shares, the value of which is deductible in the value of the land calculated under sub-section (1): Provided also that the Collector shall, before initiation of any land acquisition proceedings in any area, take all necessary steps to revise and update the market value of the land on the basis of the prevalent market rate in that area: Provided also that the appropriate Government shall ensure that the market value determined for acquisition of any land or property of an educational institution established and administered by a religious or linguistic minority shall be such as would not restrict or abrogate the right to establish and administer educational institutions of their choice.‖

10. This present appeal has been preferred by the

appellant under Section 74 of the aforesaid Act. For the sake

of convenience, further, I would like to refer the relevant

provision of Section 69 of the said Act which reads as under:

―69. Determination of award by authority.-

(1) In determining the amount of compensation to be awarded for land acquired including the Rehabilitation and Resettlement entitlements, the Authority shall take into consideration whether the Collector has followed the parameters set out under Section 26 to section 30 and the provisions under Chapter V of this Act. (2) In addition to the market value of the land, as above provided, the Authority shall in every case award an amount calculated at the rate of twelve per cent per annum on such market value for the period commencing on and from the date of the publication of the preliminary notification under section 11 in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier.

(3) In addition to the market value of the land as above provided, the Authority shall in every case award a solatium of one hundred per cent over the total compensation amount.‖

11. From the aforesaid provision, it appears that in

determining the amount of compensation, the authority

concerned shall take into consideration as to whether the

Collector in determining the amount of compensation had

followed the parameters set out under Section 26 to Section

30 and the provision of Chapter-V of the aforesaid Act 2013

or not.

12. I have gone through the records of the Learned

Presiding Officer of Land Acquisition, Rehabilitation and

Resettlement Authority and also perused the judgment. To

substantiate the case, both the parties have reproduced

oral/documentary evidence on record. Referring claimants

have adduced 5 nos. of documentary evidence which were

marked as Exhibit-1 to Exhibit-5, on the other hand, the O.P.

No.2 i.e. the L.A. Collector relied upon sale instances which

were marked as Exhibit-A to Exhibit-F. Certain issues were

framed by the Learned Presiding Officer of Land Acquisition,

Rehabilitation and Resettlement Authority and in determining

the amount of compensation, it appears that Learned

Presiding Officer of Land Acquisition, Rehabilitation and

Resettlement Authority has relied upon Section 26(b) of the

said Act and also relied upon few citations:

i. Land Acquisition Officer vs. Karigowda reported in (2010) 5

SCC 708.

ii. Lal Chand vs. Union of India reported in AIR (2010) SC

170.

iii. Printers House Pvt. Ltd. vs. Saiyadan reported in (1994)

SCC (2) 133.

iv. Revenue Divisional Officer-cum-Land Acquisition Officer

vs. Shaik Azam Saheb & Ors. reported in (2009) 4 SCC 395.

v. U.P. Awas Evam Vikash Parishad vs. Asha Ram (D) Thr.

LRs & Ors, Civil Appeal No.337 of 2021 (arising out of SLP

(Civil) No.4445 of 2020).

13. Further, in determining the amount of

compensation, Learned Presiding Officer of Land Acquisition,

Rehabilitation and Resettlement Authority relied upon

Exhibit-4 and Exhibit-E and in both the sale instances, the

classification of land was Chara (Tilla) and Tilla/Chara (Nal).

In course of hearing of argument, Learned Counsel for the

appellant has drawn the attention of the Court that Chara

(Tilla) class of land cannot be equated with 'Tilla' class of

land. In this regard, this Court is of the opinion that in Tilla

class of land, the same may be used for the production of

forestry, horticulture and production of minor crops. So,

there cannot be any basic difference in respect of Chara

(Tilla) class of land and 'Tilla' class of land.

14. Learned Presiding Officer of the Land Acquisition,

Rehabilitation and Resettlement Authority in para No.31 of

the aforesaid judgment deducted 60% towards high potential

value in comparison with the acquired land in pursuance of

the judgment delivered by the Hon'ble Apex Court in Lal

Chand vs. Union of India and Anr reported in (2009) 15

SCC 769. In para Nos.13 and 14 of the said judgment,

Hon'ble the Apex Court observed as under:

―13. The percentage of 'deduction for development' to be made to arrive at the market value of large tracts of undeveloped agricultural land (with potential for development), with reference to the sale price of small developed plots, varies between 20% to 75% of the price of such developed plots, the percentage depending upon the nature of development of the lay out in which the exemplar plots are situated.

14. The 'deduction for development' consists of two components. The first is with reference to the area required to be utilised for developmental works and the second is the cost of the development works. For example if a residential layout is formed by DDA or similar statutory authority, it may utilise around 40% of the land area in the layout, for roads, drains, parks, play grounds and civic amenities (community facilities).‖

15. Further in U.P. Awas Evam Vikash Parishad

vs. Asha Ram (D) THR. LRS and ORS (supra), Hon'ble the

Apex Court in para No.31 observed as under:

―31. The sale instances of a smaller area have to be considered while keeping in view the principle that where a large area is the subject matter of acquisition, suitable deduction is required to be made as no prudent purchaser would purchase large extent of land on the basis of sale of a small extent in the open market. The Court thus has to consider whether the willing vendee would offer the rate at which the trial court proposes to determine the

compensation. This Court has even provided for 50% deduction for development charges on the price mentioned in the sale deed.‖

16. Relying upon the aforesaid citations, the Presiding

Officer of Land Acquisition, Rehabilitation and Resettlement

Authority as already stated deducted 60% from Exhibit-4 i.e.

as per Exhibit-4 land measuring 0.050 acre was sold for at

the rate of Rs.6,00,000/-, i.e. at the rate of Rs.48,00,000/-

per kani and after 60% deduction, as per Exhibit-4, the

valuation of land per kani comes to Rs.19,20,000/- i.e. 40%

of Rs.48,00,000/- and as per explanation 2 of Section 26 of

the aforesaid Act, the Learned Presiding Officer after

comparing the 4 comparable sale instances came to the

observation that sale instances of Exhibit-4 and Exhibit-E are

of the highest sale price and as per Exhibit-4, the Learned

Presiding Officer after deduction determined the amount per

kani Rs.19,20,000/- and the rate of Exhibit-E per kani was

Rs.4,00,000/-. Thereafter, Learned Presiding Officer of Land

Acquisition, Rehabilitation and Resettlement Authority

determined the average price per kani as (Rs.19,20,000/- +

Rs.4,00,000/-) ÷ 2 = Rs.11,60,000/- per kani for the

acquired land which in my considered view appears to be

more reasonable and justified in accordance with law as

much I do not find any infirmity in the judgment delivered by

the Learned Presiding Officer of Land Acquisition,

Rehabilitation and Resettlement Authority. Thus, after

hearing both the sides, it appears to me that the appellant

has failed to satisfy the Court any satisfactory grounds for

interference.

17. In the result, the appeal filed by the appellant

under Section 74 of the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013 stands dismissed being devoid of

merit. The judgment and award dated 11.07.2022 in

connection with case No.L.A. No.109 of 2017 delivered by

the Presiding Officer, Land Acquisition, Rehabilitation and

Resettlement Authority, Tripura is hereby upheld and

accordingly, it is affirmed. The appellant be asked to deposit

the awarded amount as per award of the Presiding Officer of

Land Acquisition, Rehabilitation and Resettlement Authority,

Tripura immediately to the appropriate authority, so that the

payment may be disbursed to the referring claimant at an

earliest.

Send down the LCRs along with copy of the

judgment.

Pending application(s), if any, also stands

disposed of.

JUDGE

MOUMITA DATTA DATTA Date: 2024.07.16 16:30:29 +05'30' Purnita