REKHA RANI BANERJEE v. STATE OF WEST BENGAL — 1999 DIGILAW 223 (CAL)

P. K. SEN, J. ( 1 ) -THIS appeal is at the instance of claimants and is directed against a decision of Sri R. R. Banerjee, Additional Special Land Acquisition Judge, Alipore, 24 Parganas in a proceedings under section 18 of the Land Acquisition Act. ( 2 ) BY Notification No. 22304 dated 15. 11. 53, the land in question were acquired for settlement of immigrants who migrated to the State of West Bengal. Such Notification was published in Calcutta Gazette dated 1. 12. 53. The land covered under the said Notification are shown in the schedule of the petition under section 18 of the Land Acquisition Act. It appears therefrom that a total area of 3. 6168 decimals of land were acquired under C. S. plots No 1120 and 1197 within village Satgachia, P. S. Dum Dum, District 24 Parganas. After such Notification and after such acquisition, the owners of the land were given compensation by the L. A. Collector, 24 Parganas. But it did not satisfy the owners of the land and as such they applied for a reference under section 18 of the Land Acquisition Act. Such reference case was contested by the State of West Bengal and the specific case of the State of West Bengal was that sufficient compensation was given to the claimants and, therefore, there cannot be any reason of being aggrieved. The learned L. A. Judge after having considered all aspects of the case and after examining the evidence on record, dismissed the reference case holding, inter alia, that adequate compensation was given to the claimants. ( 3 ) ON being aggrieved by the Judgment and Award of the learned L. A. Judge, the claimants have come up before the court with this appeal. It is contested by the Respondents, the State of West Bengal. ( 4 ) THE learned advocate appearing for the claimant/appellant has made three-fold arguments attacking the Judgment and Award of the L. A. Judge. The first contention as made by the learned advocate for the appellant was that the compensation should have been awarded at the rate of Rs. 500 per cottah, while the L. A. Collector assessed the valuation at the rate of Rs. 250 per cottach. It was affirmed by the L. A. Judge. In support of that contention, the learned advocate has down our attention to 'exhibit 1' which is dated 9. 4. 46. 500 per cottah, while the L. A. Collector assessed the valuation at the rate of Rs. 250 per cottach. It was affirmed by the L. A. Judge. In support of that contention, the learned advocate has down our attention to 'exhibit 1' which is dated 9. 4. 46. Plots covered by this Kobala are 771, 772, 773, 774 and 768 of Mouza Satgachia. The disputed plots are also with in Mouza Satgachia. In this Kobala, 2310 acre of land was sold at Rs. 7000/-, that the rate of 500 per cottach that is Rs. 30000 per acre. The learned advocate for the appellant contends that this Kobala should have been accepted, but the learned trial Judge did not place any reliance on this Kobala. Now, from the C. S. Map (Exhibit 2), it appears that the disputed plots namely plots No. 1197 and 1200 are very adjacent to the road named Gorokhobasi Road. Practically, plot No. 1197 which is much larger in area is on the Gorokhobasi Road and plot No. 1200 is just behind plot No. 1197. Therefore, this adds extra advantage because the location of the disputed plots is very advantagrous. PW 1 who has come to depose to prove the case of the plaintiff stated on oath that the disputed plots are very near to Jessore Road which is the main thorough fare of that area. It further appears from the evidence on record that the famous Engineering factory, namely Jessop and Co. is near the disputed plots. The factory of the Gramphone Company of India is also very adjacent to the disputed plots. As against this, the State of West Bengal produced the copies of 4 Kobalas upon which a learned L. A. Judge relied. But the State of West Bengal did not produce the connected C. S. Map. Therefore, location of the plots covered by these 4 Kobalas cannot be ascertained. On the other hand, it transpires from oral evidence that those lands are far off. The learned trial Judge relied upon 'exihibit A3' on the ground that it is the nearest to the relevant date. In order to assess the compensation, the location and the position of the land in question are to be taken into account. Contemporaneous documents are also necessary, but those documents must relate to the adjancent plots and to plots of equal advantage. In order to assess the compensation, the location and the position of the land in question are to be taken into account. Contemporaneous documents are also necessary, but those documents must relate to the adjancent plots and to plots of equal advantage. Herein it is seen that disputed plots are more advantageous inasmuch as it is on a main thorough fare and also very close to Jessore Road and too close to Nager Bazar which is an important place of marketing, as it appears from the evidence on record. Lands covered by "exhibit A' series related to ponds and plain ponds whereas in the instant case the disputed plots are garden having fruit bearing trees. Therefore, these 4 Kobalas are produced by the State of West Bengal cannot be taken into consideration in assessing the valuation of the land. ( 5 ) THE oral evidence that the disputed lands are high lands and are better lands stands unchallenged. DW 1 who came to depose on behalf of the State of West Bengal had no knowledge about the nature and character of the disputed plots inasmuch as he had never been to the disputed plots. ( 6 ) IT is in evidence that the disputed plots is a garden and it further appears from the evidence on record that there are about 45 fruit bearing trees on the garden. Therefore, we find that the lands in question are situated in a developed area and are very close to the main thorough fare of that area. The quality of the suit lands are also far better and therefore, we feel constrained to hold that the compensation awarded by L. A. collector was not adequate but learned trial Judge on an erroneous view of the matter, rejected the reference case. He should have enhanced valuation of the disputed plots. ( 7 ) THE learned advocates appearing for the claimants/appellant submitted before us that the learned trial Judge did not allow any solatium and interest. He should have enhanced valuation of the disputed plots. ( 7 ) THE learned advocates appearing for the claimants/appellant submitted before us that the learned trial Judge did not allow any solatium and interest. In this connection a reference may be made to the provision of section 23 of the Land Acquisition Act wherein it has been made clear that in determining the amount of compensation to be awarded for land acquired under the Act, the court shall take into consideration the market value of the land, date of publication of the notification, damage sustained by the persons interested at the time of collector's taking possession by reason of severing such land or by reason of acquisition and in consequence of acquisition, the person interested was compelled to change his residence. To compensate all these damages, the court is required to grant solatium as contemplated in section 23 (2) of the Land Acquisition Act. The importance of the award of solatium cannot be undermined, i. e. , procedural blocades, it falls automatically on the market value of land acquired, as a shadow would to a man. It springs up spontaneously as a part of the statutory growth on the determination and emergence of market value of the land acquired. It falls as a matter of course, without any impediment. In Agra Nagar Mahapalikas' case reported in AIR 1991 SC 540, the Supreme Court observed that solatium has to be awarded in every case. The court has no discretion to award or not to award. Since the award of solatium is in consideration of the compulsory nature of acquisition, it is a hanging mandate for the court to award and supply the omission at any stage where the court gets occassion to amend or rectify. Therefore, the award of solatium is mandatory as per section 23 (2) of the Land Acquisition Act, but in the instant case, the learned trial Judge did not make any order with regard to solutium. Thus, the claimants are entitled to get solatium in view of above. ( 8 ) THE third branch of agruments advanced by the learned advocate appearing for the claimant/appellant is that the claimants are entitled to interest also. In the instant case, the immigrants from the State of West Bengal were rehabilitated in the disputed plots sometime in 1947, whereas the actual notification for acquisition was made in the year 1957. ( 8 ) THE third branch of agruments advanced by the learned advocate appearing for the claimant/appellant is that the claimants are entitled to interest also. In the instant case, the immigrants from the State of West Bengal were rehabilitated in the disputed plots sometime in 1947, whereas the actual notification for acquisition was made in the year 1957. The possession was taken sometime in 1947. So, under section 28 of the Land Acquisition Act, the claimants may ask for award interest. ( 9 ) THE learned advocate appearing for the State of West Bengal did not advance any argument with regard to the claim of interest. The case reported in AIR 1997 SC 2669 wherein it was held that respondent of that case is entitled to benefit under the Amending Act of 1984 in view of the fact that the award of the reference case is of November 2, 1973, the Amending Act was enforced in 1984 and therefore the claimants are entitled to interest also, at the rate of 6 per cent on the enhanced compensation from the date of taking possession till the date of deposit in the court. In this case, therefore the appellant/claimants are entitled to the interest also. ( 10 ) ANOTHER aspect of the case is that there were about 45 fruit bearing trees on the disputed plot as it appears from the evidence. PW 1, who has come to prove the case of the claimants, failed to give any clear picture as to the valuation of the trees. On the contrary, DW 1 who is a surveyor of the L. A. Department gave a detailed statement with regard to the valuation of the trees standing on the disputed plots. The learned trial Judge did not interfere with the award of the Collector regarding the compensation awarded for the trees. We also do not find any material to interfere with such award. The learned advocate appearing for the claimants streneously argued for enhancement for the compensation with regard to the trees. But, in the absence of sufficient materials, we find that the learned trial Judge did not do anything wrong with regard to the award as made on the standing trees. The learned advocate appearing for the claimants streneously argued for enhancement for the compensation with regard to the trees. But, in the absence of sufficient materials, we find that the learned trial Judge did not do anything wrong with regard to the award as made on the standing trees. ( 11 ) THUS, having considered all aspects of the matter and taking into account the evidence adduced by the parties on record, we say that the appellants are entitled to enhanced compensation, solatium and interest. We, therefore, allow the appeal and set aside the Judgment and Award of the learned trial Judge. We direct that the appellant shall get compensation at the rate of Rs. 400 per cottah, solatium at the rate of 15 per cent and interest at the rate of 6 per cent on the enhanced valuation from the date of taking possession till the date of deposit in the trial court with all cast throughout. The respondents are directed to pay the money as per Order of this court within 3 months from this date, in default of which the appellant shall be at liberty to have their dues realised in accordance with law. V. K. Gupta, J.-I agree. Appeal allowed.