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1997 DIGILAW 369 (CAL)

State of West Bengal v. Shyamapada Ghosh

1997-09-16

BHASKAR BHATTACHARYA, SATYABRATA SINHA

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JUDGMENT Bhaskar Bhattacharya, J. 1. This appeal is at the instance of the State of West Bengal and is directed against an award dated 29.3.1984 passed by the Additional District Judge, 1st Court, Howrah in L.A. Misc. Case No. 33 of 1983. 2. Sali land in Plot No.24, measuring 6844 acres was acquired by the State of West Bengal and the Land Acquisition Collector awarded a sum of Rs. 247/- per kottah for such acquisition. 3. Being aggrieved, the present respondent filed an application under Section 18 of the Land Acquisition Act claiming compensation at the rate of Rs. 698/- per kottah. 4. The learned Court below on consideration of the materials on record accepted the case of the referring claimant and enhanced the award to Rs. 698/- per kottah. 5 Being dissatisfied with the aforesaid award, the State of West Bengal has preferred the instant first appeal. 6. Mr. Sengupta, the learned Counsel appearing on behalf of the appellant, has submitted before us that in passing the impugned order, the learned Court below totally overlooked the fact that Exbts. 2 and 2(A) relate to smaller plots and as such the valuation mentioned therein cannot be a guiding factor in the instant case as the land acquired was a bigger one. Mr. Sengupta further submits that the learned Court below while enhancing the valuation did not appreciate the documents exhibited on behalf of the State of West Bengal. 7. Mr. Banerjee appearing for the respondent, on the other hand while supporting the decision of the Court below on the question of enhancement of valuation has submitted that his client is entitled to the benefit of the amended provision of Sections 23(2) and 28 of Land Acquisition Act, those having came into force during the pendency of the instant proceeding. After considering the respective contentions of the parties and the materials on record, we are unable to concur with the submissions made by Mr. Sengupta. It is true that the Apex Court in Chiman vs. Special Land Acquisition Officer & another, AIR 1988 SC 1652 , cited by Mr. Sengupta held that in valuing a large block of land appropriate deduction has to be made for setting aside land for curving out roads, leaving open space and plotting out smaller plots suitable for construction of the building. Sengupta held that in valuing a large block of land appropriate deduction has to be made for setting aside land for curving out roads, leaving open space and plotting out smaller plots suitable for construction of the building. The Apex Court in that decision approved the decision of the High Court, deducting 25% of the valuation for the factor pertaining to largeness of the block of land under acquisition. 8. However, in the instant cage, the learned Trial Judge apart from Ext.2 and Ext. 2(a) also considered Ext.1 series viz. judgments given by Court In relation to the adjoining lands which were acquired by the same notification. 9. The learned Court below discarded Ext. 'B' series filed by the Appellant on the ground that the lands mentioned therein were of different quality. Ext. 'C' series filed by the appellant, in our opinion, were rightly ignored by the Court below on the ground that the lands in t those exhibits were low lands. 10 Tile learned Court below refused to place reliance upon the rate report filed by the appellant as the Officer who prepared the report was not examined. 11. In our opinion, in the absence of examination of the author of the report, the said report cannot but be called as a hearsay evidence and as such the learned Trial Judge rightly kept the said report out of his consideration. 12. So far Exts.2 and 2(a) are concerned it appears that by the aforesaid two kobalas dated 11.6.1968, 2 kottahs 4 chittaks of land was sold at the rate of Rs. 2,000/- per kottah. If we apply the decision cited by Mr. Sengupta ( AIR 1988 SC 1652 ) and deduct 25% of valuation mentioned therein, the valuation of the acquired land should be Rs. 1,500/- per kottah. 13. Therefore, as regards valuation assessed by the Court below by the award impugned, we accept the same as proper and reasonable on the basis of materials on record and we find no reason to interfere with the same. 14. Mr. Banerjee, the learned Advocate appearing on behalf of the respondent, as indicated earlier, contends that his client is entitled to get the benefit of amendment in Sections 23 and 28 of the Land Acquisition Act by the Land Acquisition (Amendment) Act, (68 of 1984). Thus, Mr. 14. Mr. Banerjee, the learned Advocate appearing on behalf of the respondent, as indicated earlier, contends that his client is entitled to get the benefit of amendment in Sections 23 and 28 of the Land Acquisition Act by the Land Acquisition (Amendment) Act, (68 of 1984). Thus, Mr. Banerjee submits that we should modify the award by passing an order of solatium at the rate of 30% in favour of the respondent in terms of amended Section 23(2) of the aforesaid Act and an order for payment of interest at the rate of 15% per annum in terms of proviso to Section 28 of the aforesaid Act. 15. We find substance in the submission of Mr. Banerjee. In view of the decision of the Apex Court in Bhag Singh & other vs. Union Territory of Chandigarh, AIR 1985 SC 1576 , the respondent is entitled to get solatium at the rate of 30% on and from the date of publication of notification under Section 4(1) of the aforesaid Act. The referring claimant is also entitled to get interest at the rate of 15% per annum and the same will be payable from the date of expiry of one year from the date on which possession was taken on the amount of such excess or part thereof which has not been paid before the date of such expiry. The quantum of interest will be calculated upon taking into account the amount which has already been withdrawn by the referring claimant. 16. The learned Registrar, Appellate Side, is directed to release the amount which has been deposited in favour of the referring claimant on such application being made. 17. It appears that the case was wrongly placed before the Lawazima Bench for alleged non-filing of paper book vide office report dated 24.11.1995. However, it appears that eight copies of paper book were filed on 21.6.1995 vide office report dated 6.8.1995 and thus order-sheet beginning from dated 6.8.1995 before Lawazima Bench and/or Division Bench proceeded on a wrong premise. The order dated 28.11.1995 therefore, stands recalled. 18. The Award passed by the learned Court below is modified to the extent Indicated above. The appeal is disposed of accordingly. There will be no order as to costs.