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2005 DIGILAW 127 (CAL)

KHOKAN CHANDRA KARMAKAR v. STATE OF WEST BENGAL

2005-02-24

BHASKAR BHATTACHARYA, JYOTIRMAY BHATTACHARYA

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BHASKAR BHATTACHARYA, J. ( 1 ) THIS appeal is at the instance of the heir of the deceased claimant and is directed against order dated 2nd December, 1994 passed by the Additional District Judge, Second Court, Dakshin Dinajpur at Balurghat in L A. Case No. 39 of 1992 thereby disposing of L A. Case No 39 of 1992 by enhancing the valuation of the Danga land from Rs. 15 000/- to Rs. 50,000/- per acre and that of Dala land from Rs. 7,500/- to rs 10,0007- per acre. The learned L. A. Judge further directed that referring claimant should be entitled 30% of the assessed compensation under Section 23 of the Act-l of 1984 read with Section 7 (2) (a) of the West Bengal Act-ll of 1948 to the extent of compensation which is in excess of the sum already received by him. It was further ordered that excess amount should carry interest at the rate of 9% per annum from the date of possession to the date of payment of the said excess amount and after the expiry of one year, such interest should be enhanced to 15% per annum in respect of the said excess amount till the date of final payment. ( 2 ) THE facts giving rise to filing of the instant appeal are as follows -the lands described in Schedule A to the petition filed by the referring claimant before the Collector, West Dmajpur were acquired by Land Acquisition collector, for the purpose of construction of Gangarampur-Hamjapur Road in 1976 The requisite notice was served upon the owner of the property and l A Case No 1 of 1973-74 was started and ultimately, the Collector passed award in favour of such owner. According to the Collector, at the relevant point of time, the value of the Danga land was Rs 15,000/- per acre and so far as the Dala class of land is concerned, the rate was assessed at the rate of Rs 7,500/- per acre i. e. half the value of Danga land. According to the Collector, at the relevant point of time, the value of the Danga land was Rs 15,000/- per acre and so far as the Dala class of land is concerned, the rate was assessed at the rate of Rs 7,500/- per acre i. e. half the value of Danga land. ( 3 ) BEING dissatisfied, the owner of the land filed objection before the l A Collector claiming compensation at a higher rate and prayed for reference to the learned District Judge, West Dmajpur for determination of the appropriate compensation in his favour on the basis of the existing market price of the neighbouring lands at the relevant time and accordingly, a land acquisition case was initiated on reference made by Collector under Section 18 of the land Acquisition Act ( 4 ) THE learned Land Acquisition Judge, by the order impugned herein on consideration of the materials on record, assessed the value of the Danga land at the rate of 50,000/- per acre and that of Dala land at the rate of Rs 10,000/- per acre As pointed out earlier, the appellant was further given the benefit of 30 per cent of the assessed compensation under Section 23 of the act-l of 1984 read with Section 7 (2) (a) of the West Bengal Act-ll of 1948 such benefit was applicable to the extent of compensation which was in excess of the sum already received by him It was further ordered that the said excess amount should carry interest at the rate of 9% per annum from the date of possession till the date of payment of the said excess amount and after the expiry of one year, such interest should be enhanced at the rate oi 15% per annum in respect of the said excess amount till the date of final payment ( 5 ) BEING dissatisfied, this appeal has been preferred ( 6 ) MR Chanda, the learned Advocate appearing on behalf of the appellant, has made threefold submission before this Court. ( 7 ) FIRST, according to Mr Chanda, the learned L A Judge erred in law in not considering the deeds produced by the referring claimant on the ground that the lands covered by those deeds were coupled with structures according to Mr Chanda, it was the duty of the Court to exclude the value of the structures and to assess the value of land less the value of the structures standing thereon ( 8 ) SECONDLY, Mr Chanda contends that in this case, the Court below ought to have given benefit of Section 23 (1a) of the Land Acquisition Act notwithstanding the fact that the land was acquired under West Bengal Act-ll of 1948 In support of such contention, Mr Chanda has referred to a division Bench decision of this Court in the case of State of West Bengal v anil Kumar Ghosh reported in 2001 Cal WN 974 ( 9 ) LASTLY, Mr Chanda contends that the learned L A Judge erred in law in fixing the valuation of the Dala land at the rate of 1/5th the Danga land although according to the guidelines issued by the State Government, Danga land should be valued at the rate of half the value of Danga land He, thus, prays for enhancement of compensation of the Dala lands on that basis ( 10 ) MR Maity, the learned Advocate appearing on behalf of the State-respondent has conceded before this Court that in view of the Division Bench i decision of this Court in the case of State of West Bengal v Anil Kumar i Ghosh (supra), the appellant is entitled to the relief mentioned in Section [23 (1a) of the Land Acquisition Act ( 11 ) REGARDING the valuation of the Danga land, Mr Maity, however, contends that the onus is upon the referring claimant to show the market price of the land at the relevant time Mr Maity contends that the learned Trial judge rightly excluded the deeds relied upon by the referring claimant from consideration on the ground that those deeds did not reflect the actual valuation of the land and the evidence of the value of the structure was also not available According to Mr Maity, it was the duty of the appellant to produce further evidence showing the extent of structure and value thereof and in the absence of such evidence, the learned Trial Judge rightly excluded those documents from consideration ( 12 ) REGARDING valuation of Dala land, Mr Maity contends that in the absence of any evidence showing higher price of the Dala land in that area, there is no scope of enhancing the valuation assessed by the learned Trial judge ( 13 ) AFTER hearing the learned Counsel for the parties and after going through the materials on record, we find that in assessing the valuation of the danga Land the learned Trial Judge rightly excluded the three deeds produced by the appellants from consideration as no further evidence was adduced by the appellant showing the extent of the structure or the value of the structure standing on the land as mentioned in those deeds In the absence of that evidence, it was not possible for the learned Trial Judge to assess the exact valuation of the land involved in those transactions We, thus, find that in the fact of the present case on the basis of materials on record, the learned Trial judge rightly assessed the valuation at Rs 50,000/- per acre of Danga land ( 14 ) AS regards the second point raised by Mr Chanda, we are of the opinion that in this case the award by the Collector having been passed prior to 30th April, 1982, the date of introduction of Land Acquisition (Amendment)bill 1982, the Referring Claimant cannot get the benefit of the amended provision of Section 23 (1a) of the Act as provided in Section 30 of the amending Act (See K S Paripoornan v State of Kerala and Ors, reported in air 1995 SC 1012 ) It appears from the decision of the Division Bench of this court in the case of State of West Bengal v Anil Kumar Ghosh (supra), relied upon by Mr Chanda that the said Division Bench merely held that even if the land is acquired under the provisions of the West Bengal Act II of 1948, the land owner would get benefit of the provision of Section 23 (1a) of the Land acquisition Act as if the land is acquired under the latter Act But if it appears that the award in a case has been made by the Collector at such a point of time to which the amended provision of Section 23 (1 A) of the Land Acquisition act has no application, in such case, the owner cannot get the relief under that section. We, accordingly, hold that the appellant is not entitled to the benefit of the amended provision of Section 23 (1a) of the Land Acquisition act as the case does not fall under any of the situations mentioned under section 30 (1) of the Amending Act and the learned Trial Judge rightly did not grant such relief to the Referring Claimant. ( 15 ) REGARDING the valuation of the Dala land, we find that the State government itself having indicated in the rate report which is included at page 1 of the Paper Book that the valuation of the Dala land should be half the valuation of the Danga land, in our view, Mr. Chanda is right in his contention that the value of Dala land should be half of that of Danga land and the Court having fixed the value of Danga land at Rs. 50,000/- per acre, there was no justification of fixing the value of the Dala land at the rate of Rs 10,000/- per acre which is 1/5th of the value of Danga land fixed by the Court itself We, thus, find in the facts of the present case, Dala land should be valued at Rs 25,000/- per acre when the State has not challenged the valuation of the Danga land by filing any cross-objection or separate appeal. ( 16 ) WE, therefore, modify the award impugned by enhancing the valuation of the Dala land from Rs. 10,000/- per acre to Rs. 25,000/- per acre the other parts of the award are not interfered with by this order. The respondents are directed to pay the enhanced amount within two months from today in terms of this order. In the facts and circumstances, there will be, however, no order as to costs.