Tripura High Court
Smt. Shipra Biswas Majumder vs The Deputy Chief Engineer ... on 13 March, 2024
HIGH COURT OF TRIPURA
AGARTALA
CO(FA) No.06 of 2019
In LA App. No.54 of 2019
Smt. Shipra Biswas Majumder,
wife of Sri Uttam Majumdar, C/O Sri Milan Behari Majumdar, of
No-1 College Road, Sarasima, P.O. Sarasima, P.S. Belonia, District
South Tripura, Pin 799155, at present residing at Ker Chowmuhani,
T.G. Road, Ramnagar Road No.-2, P.O. Ramnagar, P.S. West
Agartala, District West Tripura, Pin 799002.
.........Cross Objector/Claimant Respondent/Appellant(s)
-Versus-
1. The Deputy Chief Engineer (Construction),
N.F. Railway, Agartala, West Tripura, Badharghat Railway Station,
P.O. Siddhi Ashram, P.S. Amtali, District West Tripura.
.........Appellants-Respondent(s)
2. The Land Acquisition Collector,
South Tripura, Belonia, P.O. Belonia, P.S. Belonia, District South
Tripura, Pin 799155.
........ Respondent(s)
LA App. No.54 of 2019
The Deputy Chief Engineer (Construction),
N.F. Railway, Badharghat Railway Complex, P.O. Siddhi Ashram,
P.S. Amtali, Agartala, District Tripura West.
......... Appellant(s)
-Versus-
1. Smt. Shipra Biswas (Majumder),
Wife of Sri Uttam Majumder, Resident of No.1 College Road,
Sarashima, P.S. Belonia, District South Tripura.
2. The Land Acquisition Collector,
South Tripura, Belonia.
........ Respondent(s)
CO(FA) No.06 of 2019
For the Cross Objector(s) : Mr. J. Rajesh, Advocate.
Mr. N. Majumder, Advocate.
For the Respondent(s) : Mr. B. Majumder, Dy. SGI.
Mr. Kohinoor N. Bhattacharya, G.A.
LA App. No.54 of 2019
For the Appellant(s) : Mr. B. Majumder, Dy. SGI.
For the Respondent(s) : Mr. J. Rajesh, Advocate.
Mr. N. Majumder, Advocate.
Mr. Kohinoor N. Bhattacharya, G.A.
Date of hearing : 5th February, 2024.
Page 2 of 15
Date of delivery of : 13th March, 2024.
Judgment & order
YES NO
Whether fit for reporting : √
HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA
JUDGMENT & ORDER
A land area of 0.32 acre (class tilla) under plot
Nos.5636/6495/p in Mouja Sarasima, South Tripura was acquired
by the Government for construction of a new railway line from
Agartala to Sabroom vide notification No.9(05)-REV/ACQ/XII/2012
dated 15.03.2012.
[2] While determining the compensation, the LA Collector
collected some sale exemplars but did not rely on the same on the
ground that the lands of those sale deeds were not nearer to the
acquired land. The LA Collector, thereafter, collected plot-wise
valuation chart from the office of SDM, Belonia and finally awarded
compensation @ Rs.4,00,000/- per kani for the land and
Rs.24,800/- for 62 rubber trees found therein. The present
claimant-cross-objector [hereinafter referred as "claimant"] being
aggrieved thereby sought reference under Section 18 of the LA Act
in the Court of LA Judge, Belonia and learned LA Judge thereafter
awarded compensation @ Rs.10,00,000/- per kani for the land and
@ Rs.6,000/- for each rubber tree in respect of said total 62 rubber
trees.
[3] Being aggrieved by the award of learned LA Judge, the
requiring department, NF Railway preferred LA App. No.54 of 2019
Page 3 of 15
and simultaneously, the claimant preferred CO(FA) No.06 of 2019.
This Court, thereafter, dismissed both the LA Appeal and Cross
Objection vide judgment dated 07.07.2021 affirming the award
passed by the learned LA Judge.
[4] The original appellant i.e. N.F. Railway did not move
further but the cross-objector preferred Civil Appeal No.6281 of
2023 with SLP(C) No.21355 of 2022 before the Hon'ble Supreme
Court and the Hon'ble Supreme Court vide order dated 27.09.2023
remanded the matter for fresh determination of market value of the
acquired land keeping in view of the exemplars relied upon by the
claimant before the Land Acquisition Collector/Reference Court. The
relevant observation of the Hon'ble Supreme Court is extracted
herein below:
"12. It appears to us that the High Court ought not to
have determined the compensation only on the basis of
one sale instance or the amount claimed by the
appellants in their reference under Section 18 of the
Act. All that the High Court was required to do was to
consider the sale instances and then determine as to
whether all the sale instances or any one of them is
comparable with the acquired land for the purpose of
assessing the fair and just market value of the acquired
land.
13. For the reasons aforestated, the appeals are
allowed in part, the impugned judgments dated
16.07.2021 and 07.07.2021 are set aside and the
matters are remanded to the High Court for a fresh
determination of the market value of the acquired land
of the appellants keeping in view the exemplars relied
upon by them before the Land Acquisition
Collector/Reference Court.
14. It goes without saying that the High Court will
not reduce the compensation already awarded to the
appellants at the rate of Rs.10,00,000/- per kani.
15. We request the High Court to re-determine the
rate of compensation within a period of four months
from the date of appearance of the parties before the
High Court.
Page 4 of 15
16. It is clarified that we have not expressed any
opinion on the merits of the appellant's claim.
17. As a result, the pending interlocutory
applications also stand disposed of."
[5] On remand, after reopening the hearing of the case, the
claimant adduced one additional evidence i.e. one report dated
27.11.2023 issued by the Executive Engineer, Belonia Division,
PWD(R&B), Belonia, South Tripura along with the hard copy of one
google map showing aerial distance of the acquired plot with some
other plots (marked as Exbt.15/1 and Exbt.15/2 respectively).
[6] Appearing for the claimant-cross objector, Mr. J. Rajesh,
learned counsel argued that the claimant took possession of the
acquired land on lease from one Sankar Baisnab and his wife, Dipali
Baisnab, for 99 years vide Lease Deed No.1-2056 dated
18.11.2002 (Exbt.11) and developed the land and finally, planted
and nourished rubber trees therein and when the expected time for
tapping the rubber came, the land was acquired to the utter
deprivation of the claimant from getting benefits of her huge
investment in the land. While referring to different sale exemplars
as proved in the record, Mr. Rajesh, learned counsel strongly relied
on the said exemplars under Exbt.1, Exbt.3 and Exbt.5. According
to him, the LA Collector did not prove any sale exemplar to
contradict abovesaid sale exemplars and therefore, the sale
exemplars are most reliable. He also tried to show the distance of
some plots involved in those sale exemplars from the acquired land
Page 5 of 15
referring to exhibit Exbt.15/2. Finally, he relied on the following
decisions of the Apex Court:
(i) Mahesh Dattatray Thirthkar vs. State of
Maharashtra, (2009) 11 SCC 141- At Para-47 it was observed
that minor inconsistency in the testimony of witness do not warrant
non-reliance of the same.
(ii) Chandrashekar (Dead) by LRS. & Ors. vs.
Land Acquisition Officer & Anr., (2012) 1 SCC 390- Hon'ble
Supreme Court at Para 22 reiterated the principles as enunciated in
Lal Chand vs. Union of India, (2009) 15 SCC 769 and A.P. Housing
Board vs. K. Manohar Reddy, (2010) 12 SCC 707, that while
applying the sale consideration of a small piece of developed land
to determine the market value of a large tract of undeveloped
acquired land, deductions between 20% to 75% can be made. But
in 2009 in Subh Ram case, Apex Court restricted deduction on
account of the "first component" or development, as also, on
account of the "second component" of development to 33 % each.
(iii) Ashok Kumar & Anr. vs. State of Haryana,
(2016) 4 SCC 544- In this case Hon'ble Supreme Court at Para 7
held that a higher compensation than what is claimed by the
applicant in his pleading can be awarded by the Court and it is the
duty of the court to award just and fair compensation taking into
consideration the true market value and other relevant factors,
irrespective of claim made by the owner.
Page 6 of 15
Finally, learned counsel prayed for a higher rate of
compensation @ Rs.40,00,000/- per kani for the land.
[7] Mr. B. Majumder, learned Dy. S.G.I. for NF Railway, on
the other hand, argued that the map as produced under Exbt.15/2
by the claimant did not demonstrate the physical distance between
the land of sale exemplars and the acquired land, and nothing was
proved by the claimant to show such actual physical distance.
According to him, aerial distance cannot be taken into consideration
for determining the market value. Learned Dy. S.G.I. also argued
that maximum sale exemplars as relied upon by the claimant were
transacted for residential purposes i.e. for bastu (tilla) class of land
which cannot form basis for determination of compensation.
Another issue for the first time was raised by him that the claimant
was not the owner of the land, rather she was a leasee but the
original owner was not made a party in the proceeding and
therefore, the appeal itself was not maintainable. Learned Dy.
S.G.I. also referred to Para-9 of the examination-in-chief of the
claimant to show that her claim in the evidence was around
Rs.11,00,000/- per kani as she had stated therein that the LA
Collector for the adjacent land awarded compensation @
Rs.11,00,000/- per kani for tilla and chara class of land.
[8] Learned Dy. S.G.I. finally referred to the following
decisions of Hon'ble Supreme Court:
Page 7 of 15
(a) Kiran Tandon vs. Allahabad Development
Authority & Anr., (2004) 10 SCC 745- At para-10 it was
observed by the Apex Court that Collector's award under Section
11 is nothing more than an offer of compensation made by the
Government to the claimants and burden of proving that the
amount of compensation awarded by the Collector is inadequate
lies upon the claimant and he is in the position of a plaintiff.
(b) Shaji Kuriakose & Anr. vs. Indian Oil Corpn.
Ltd. & Ors., (2001) 7 SCC 650- At Para-3 it was observed that
while determining the valuation of land under comparable sales
method, the following factors are required to be fulfilled:
(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 sale must be in the vicinity of the
acquired land,
(4) the land covered by the sales must be similar to the
acquired land, and
(5) that the size of plot of the land covered by the sales be
comparable to the land acquired.
The Hon'ble Apex Court further observed that 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 dissimilarity in regard to locality, shape, site or
nature of land between land covered by sales and land acquired, it
is open to the court to proportionately reduce the compensation for
acquired land to what is reflected in the sales depending upon the
disadvantages attached with the acquired land.
Page 8 of 15
(c) Ravinder Narain & Anr. vs. Union of India,
(2003) 4 SCC 481- At para-9, it was observed that if the following
principles of fixation of market value with reference to comparable
sale are made, the element of speculation can be reduced to a
minimum:
(i) when sale is within a reasonable time of the date
of notification under Section 4(1);
(ii) it should be a bona fide transaction;
(iii) it should be of the land acquired or of the land
adjacent to the land acquired; and
(iv) it should possess similar advantages.
Same principle was also reiterated in Karnataka Urban
Water Supply & Drainage Board & Ors. vs. K.S.
Gangadharappa & Anr., (2009) 11 SCC 164, as referred by
learned Dy. S.G.I.
(d) Major General Kapil Mehra & Ors. vs. Union of
India & Anr., (2015) 2 SCC 262- At para-10 it was observed by
the Apex Court that while fixing the market value of the acquired
land, the land acquisition officer is required to keep in mind the
following factors: (i) existing geographical situation of the land; (ii)
existing use of the land; (iii) already available advantages, like
proximity to National or State Highway or road and/or developed
area; and (iv) market value of other land situated in the same
locality/village/area or adjacent or very near to the acquired land.
Page 9 of 15
(e) Lal Chand vs. Union of India & Anr., (2009) 15
SCC 769- At para-13 it was observed that 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 layout in which the exemplar plots are situated.
(f) M/s. Printers House Pvt. Ltd. vs. Mst. Saiyadan
(Deceased) by L. Rs. & Ors., AIR 1994 SC 1160- The relevant
observation at Para-30 as referred was that for determination of
compensation on the basis of comparable sales method, the
proximity of land of sale exemplar to the acquired land assumes
great significance.
Taking recourse to all these decisions of the Apex Court,
learned Dy. S.G.I. submits that the claimant was not entitled to
further enhancement of compensation.
[9] Mr. Kohinoor N. Bhattacharya, learned G.A. also made
similar submissions. However, he supported the report of the
Executive Engineer, PWD as marked under Exbt.15/1 and 15/2.
[10] The claimant proved 7 (seven) numbers of sale
exemplars under Exbt.1 to Exbt.7 before the learned LA Judge to
support her claim. But two sheets of revenue maps, as proved
under Exbt.8, do not indicate the location of plots of sale exemplars
and the acquired plot to show the approximate distances. However,
Page 10 of 15
the Exbt.15/2, under additional evidence, indicates the
approximate distance (aerial distance) of Exbt.1, Exbt.3 and Exbt.5
only. For convenience, the summary of the sale exemplars under
Exbt.1 to Exbt.7 is canvassed in a chart below:
Exbt. Deed No. Plot No. Class Area Value (in Rate (in Approximate Remark
No. Sold Rs.) Rs.) Distance , if any
between
acquired Plot
and plots
under
Exhibits
1 No.1-1533 3088 Bastu 0.09 6,75,000/- 30 lakhs Approx 1.8
dated (Tilla) Acre per kani Km ----
15.12.2010
2 No.1-1483 3292 Bagan 0.06 1,50,000/- 10 lakhs Not available North-
dated (Tilla) Acre per kani PWD
19.11.2010 Road
3 No.1-249 1026/6883 Bastu 0.01 1,00,000/- 40 lakhs 1.45 Km South-
dated (Tilla) Acre per kani PWD
22.02.2010 Road,
East-
Path
4 No.1-987 2906 Viti (Tilla) 0.35 8,00,000/- 9,14,000/- Not available West-
dated Acre per kani Govt.
05.05.2006 Road
5 No.1-1667 942 Bagan 0.04 6,00,000/- 60 lakhs 1.8 Km South-
dated (Tilla) Acre per kani ITI
16.12.2009 Road
6 No.1-1008 3605/5950 Viti (Tilla) 0.02 50,000/- 10 lakhs Not available
dated and 3605 Acre per kani ----
04.07.2008
7 No.1-1366 1601 Rubber 0.08 1,50,000/- 7,50,000/- Not available
dated garden Acre per kani
----
25.10.2010 (Chankhala
Lunga)
[11] The acquired land is of class tilla whereas no exemplar
under tilla class of land was proved by the claimant. According to
the claimant, she made rubber plantation inside the acquired plot.
Therefore, the nature of the land as converted by the claimant after
necessary development became more or less in the nature of bagan
(tilla) class of land. Out of said 7 (seven) sale exemplars, Exbt.1
and Exbt.3 relate to transfer of bastu (tilla) class of land and Exbt.4
and Exbt.6 relate to viti (tilla) class of land. Both bastu (tilla) and
viti (tilla) classes of land are totally dissimilar with the nature of
present acquired land. Exbt.2 demonstrates the transfer of 0.06
acre of land in the year 2010 @Rs.10,00,000/- per kani in respect
of bagan (tilla) class of land, but distance of the same from the
acquired land is not available in the record and it is a road side
land. Similarly, another small plot of 0.04 acre of land under Exbt.5
of bagan (tilla) was sold @ Rs.60,00,000/- per kani in the year
2009 and the said land is situated near ITI road as per the
boundary description given in the deed. But nothing is there that
transaction under Exbt.5 was not bona fide. Even the L.A. Collector
in his assessment note mentioned of other two sale deeds bearing
No.1-1520 dated 08.12.2010 and No.1-1535 dated 15.12.2010
wherein also transactions took place @ Rs.60 lakhs per kani for
Bagan (tilla) class of land but those deeds with other sale
exemplars were discarded by him on the ground that same were
not nearer to the acquired land but he did not even show the
distance of those sale exemplars from acquired land. Therefore, it
appears that transaction @Rs.60 lakhs per kani for such
bagan(tilla) class of land were not unusual in that area during the
time of acquisition. Under Exbt.7, Chankhala (lunga) [Chankhala
indicates haycock] class of land was sold in the year 2010
@Rs.7,50,000/- per kani. There is also mention of rubber garden in
the said land in the contents of the deed, but this land is of much
inferior quality than the acquired land. In Land Acquisition
Officer, Kammarapally Village, Nizamabad District, A.P. vs.
Nookala Rajamallu & Ors., (2003) 12 SCC 334- At para-6 of
the judgment, it was observed by the Apex Court that where large
area is the subject-matter of acquisition, rate at which small plots
are sold cannot be said to be a safe criterion. However, it cannot be
laid down as an absolute proposition that rates fixed for small plots
cannot be the basis for fixing the rate. For example, where there is
no other material, it may, in appropriate cases, be open to the
adjudicating court to make a comparison of prices paid for small
plots of land. However, in such cases, necessary
deductions/adjustments have to be made while determining the
prices.
[12] In Mehrawal Khewaji Trust (Regd.) Faridkot & Ors.
vs. State of Punjab & Ors., 2012 AIR SCW 2822, in para-15, it
was also observed by the Apex Court that when there are several
exemplars with reference to similar lands (emphasis added), it is
the general rule that the highest of the exemplars, if it is satisfied,
that it is a bona fide transaction has to be considered and accepted.
When the land is being compulsorily taken away from a person, he
is entitled to the highest value which similar land in the locality is
shown to have fetched in a bona fide transaction entered into
between a willing purchaser and a willing seller near about the time
of the acquisition. It was also observed that it would seem to be
only fair that where the sale-deeds pertaining to different
transactions are relied on behalf of the Government, the
transaction representing the highest value should be preferred to
the rest unless there are strong circumstances justifying a different
course and it is not desirable to take an average of various sale-
deeds placed before the authority/court for fixing fair
compensation.
[13] On appreciation of the deed under Exbt.5 vis-a-vis the
map under Exbt.15/2, it appears that the land under Exbt.5 is
situated at a distance of 1.8 Km from the acquired land at Satmura
Chowmuhani which is much closer to the office of DM & Collector,
South Tripura District. Satmura Dakshinewari Kali temple,
Mahamaya kalibari, Buddha temple, Municipal council office etc. are
comparatively closer to the land of Exbt.5 which otherwise indicates
its location within urban area i.e. Belonia township. Moreso, it is a
roadside land situated adjacent to ITI road. This may also be the
reason why sale was transacted in much higher rate. On the other
hand, as already indicated above, there is no material to ascertain
the distance of Exbt.2 from the acquired plot and same also does
not display the transaction of highest rate. Therefore, in light of the
principle as laid in Mehrawal Khewaji Trust (Regd.) Faridkot &
Ors. (Supra), Exbt.5 is taken into consideration for determination
of market value of the acquired land subject to necessary
deduction. In Exbt.5, sale of land was transacted @ Rs.60,00,000/-
per kani. As discussed, the location of Exbt.5 is in an urban area,
presumably having all the civic amenities of an urban area and its
distance from acquired plot is 1.8 km. A small plot of land of area
0.04 acre was transferred by Exbt.5 and it is road side land.
Considering such smaller area of plot, distance and less
potentiality, 20% + 20%+ 30% i.e. total 70% deduction appears to
be just and proper for determination of value of acquired land.
Market value of acquired land is, therefore, determined at
(Rs.60,00,000 - 70% of Rs.60,00,000)= Rs.18,00,000/- per kani.
Though land under Exbt.5 was executed in December, 2009 and
acquisition was made in March, 2012, but no benefit of escalation
of rate is favoured to the claimant considering the fact that from
the above pictorial chart, no remarkable escalation is found visible
in that area rather, a similar or even lower rate appeared to have
been maintained in that locality in 2009 and 2010 AD for such
bagan (tilla) class of land.
[14] Learned Dy. S.G.I. though argued that the aerial
distance of acquired plot from sale exemplar cannot be taken into
consideration but revenue map also demonstrates the distance
determined on the basis of scale and not the physical distance
based on road connectivity.
[15] Learned Dy. S.G.I. also questioned the maintainability of
the appeal on the ground that the original owners of the land were
not made parties in the appeal but such submission cannot be
considered at this stage, for, no such plea was earlier taken by
them before any Court and the matter was remanded only for a
limited purpose. Said original owners namely, Sankar Baisnab and
Dipali Baisnab also never prayed for any reference under section 18
of the Act. A copy of the judgment dated 18.03.2021 passed by
this Court in LA App. No.04 of 2020 with reference to Section 30 of
the L.A. Act is also placed before me which shows that the matter
of apportionment regarding the present award was already set at
rest by holding that the present claimant-cross objector will get
55% and the original owners, Sankar Baisnab and Smti Dipali
Baisnab, jointly get 45% of the award compensation.
In the result, the cross objection is allowed.
Compensation for the land is determined @Rs.18,00,000/- per
kani. The rate of trees as was determined by the LA Judge is not
interfered with and is hereby affirmed. Further, it would carry 30%
solatium, other statutory interests, additional compensation and
cost in terms of the award passed by the learned LA Judge, South
Tripura, Belonia. Compensation for the land will be apportioned in
terms of judgment dated 18.03.2021 passed in LA App. No.04 of
2020. Needless to say, L.A. Appeal No.54 of 2019 will accordingly
be treated to be dismissed.
Pending application(s), if any, also stands disposed of.
Registry is to re-consign the LCRs with a copy of this
judgment.
JUDGE
Rudradeep RUDRADEEP BANERJEE Digitally signed by RUDRADEEP BANERJEE
Date: 2024.03.14 15:14:19 +05'30'
