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Calcutta High Court · body

2008 DIGILAW 476 (CAL)

Ashutosh Law v. General Manager Metro Railways

2008-05-06

DEBASISH KAR GUPTA

body2008
Judgment :- 1. THE order dated October 4, 1991 passed by the respondent No. 3 in claim Case No. 16/2/9/87 determining the acquisition claim of the petitioners and the order dated January 6, 1993 passed by the respondent No. 4 in c. A. No. 16/91 are the subject-matters of challenge in this writ application. 2. THE petitioners were the owners of premises No. 24 Ganesh chandra Avenue, Calcutta. By a Notification dated May 17,1985 published in the official gazette the Government of India acquired the aforesaid premises No. 24 Ganesh Chandra Avenue, Calcutta (hereinafter referred to as the said premises) under the provisions of Section 7 of the Metro railways (Construction of Works) Act, 1978 for construction of Metro railways. Thereafter, a Notification dated June 12, 1986 was published under the provisions of Section 10 of the Metro Railways (Construction Works) Act, 1978 (hereinafter referred to as the said Act) for the purpose of acquisition of the said land. 3. THE petitioners filed an application under Article 226 of the constitution before this Court and pursuant to the order passed in the aforesaid writ application, the petitioners lodged a claim being Case no. 16/2/9/87 for awarding compensation of an amount of Rupees one crore twenty lakhs in favour of the petitioners for acquiring 430 square meters/6. 42506 cottahs of land lying and situated at the said premises. Respondent No. 3, being the competent authority, Metro Railways appointed under the Metro Railways (Construction of Works) Act, 1978 by a judgment dated October 4,1991 allowed the claim of the petitioner determining the compensation of the said land for Rs. 12,52,886/- and that of the structure lying and situated on the said land for Rs. 47,113. 50, i. e. in all a total amount of Rs. 13,00,000/ -. 4. THE petitioners preferred an appeal being C. A. No. 16/91 under subsection 3 of Section 13 of the Metro Railways (Construction of Works) Act, 1978 before the respondent No. 4 against the judgment and order dated october 4,1991 passed in claim No. 16/2/9/87. The respondent No. 5 allowed the aforesaid appeal modifying the judgment and order dated October 4,1991 passed in claim Case No. 16/2/9/86 in part to the effect that the total amount on account of acquisition of land should be Rs. 16,71,8207 -. 5. APPEARING of behalf of the petitioners Mr. The respondent No. 5 allowed the aforesaid appeal modifying the judgment and order dated October 4,1991 passed in claim Case No. 16/2/9/86 in part to the effect that the total amount on account of acquisition of land should be Rs. 16,71,8207 -. 5. APPEARING of behalf of the petitioners Mr. B. K. Bachoyat submit that the judgment and order dated October 4, 1991 passed in claim Case no. 16/2/87 cannot be sustained in law on the grounds of error apparent on the face of record. lt is submitted on behalf of the petitioners that the respondent No. 3 assessed the valuation of the said land on the basis of his observation that the said land was not a vacant land. The respondent no. 3 did not accept the valuers report, which was submitted by the petitioners, on the ground that the said land was not a vacant land. Drawing the attention of this Court towards the statements made in Paragraph-11 of the affidavit-in-opposition affirmed on behalf of the respondent Nos. 1 to 5, it is submitted on behalf of the petitioners that there was no doubt that the vacant possession of the said land together with structures thereon had been handed over to the respondent authority. Relying upon the report dated July 15,1991 of Harish Mukherjee and Co. on the valuatton of the said premises (at page 75 to this writ application and the supplementary report dated August 13, 1991 of Harish Mukherjee and Co. on the valuation of the said premises, it is submitted on behalf of the petitioners that there was no challenge on the part of the respondent authority in respect of the aforesaid reports. Therefore, there was no reason for non-acceptance of that valuation. It is further submitted that the respondent No. 3 determined the valuation of the said plot of land @ Rs. 1,95000/-per cottah on the basis of guase work which was not permissible in law. Drawing the attention of this Court towards the provisions of Clause (a) of sub-section (4) of section 13 of the said Act it is submitted on behalf of the petitioners that the market value of the land on the date of publication of the Notification under Section 7 was required to be taken into consideration to determine the compensation money. Drawing the attention of this Court towards the provisions of Clause (a) of sub-section (4) of section 13 of the said Act it is submitted on behalf of the petitioners that the market value of the land on the date of publication of the Notification under Section 7 was required to be taken into consideration to determine the compensation money. The respondent No. 3 determined the market value of the said land without any basis and without taking into consideration any material to assess the market value of the said land on the date of publication of the notification under Section 7 of the Metro railways (Construction Works) Act, 1978 6. IT is also submitted that the judgment and order dated July 6, 1993 was passed by the respondent No. 4 without considering the aforesaid aspects of the matter. The respondent No. 4 also failed to take into consideration the valuation report dated July 15,1991 of M/s. Harish mukherjee and Co. together with supplementary report dated August 13, 1991. Instead the appellate authority came to a conclusion that only the sale deed with regard to premises No. 2 Ganesh Chandra Avenue, Calcutta, which had been registered in the year 1966, was the only document which could be taken into consideration for determining the valuation of the said land. In doing so the escalation of the price at certain rate was taken into consideration. According to the petitioners such conclusion was not only erroneous but the same was perverse. 7. RELYING upon the decisioin of A. E. G. Carapiet v. A. Y. Derderian, reported in AIR 1961 Cal 359 it is submitted on the behalf of the petitioners that whenever a party has declined to avail himself of opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is a rule of essential justice. Since, there was not cross-examination with regard to the valuation report dated July 15, 1991 and the supplementary report dated august 13,1991 submitted by Harish Mukherjee and Co. the same should have been accepted by the respondent No. 3 in acquisition claim No. 10/2/9/87 as also by the respondent No. 4 in the appeal being C. A. No. 16/91. 8. Since, there was not cross-examination with regard to the valuation report dated July 15, 1991 and the supplementary report dated august 13,1991 submitted by Harish Mukherjee and Co. the same should have been accepted by the respondent No. 3 in acquisition claim No. 10/2/9/87 as also by the respondent No. 4 in the appeal being C. A. No. 16/91. 8. THE attention of this Court is also drawn to the contents Paragraph-1593 of PHIPSON ON EVIDENCE (12th Edition) (at page 656) to submit that as a rule, a party should put to each of his opponents witnesses in turn so much of his own case as concerns that particular witness, or in which he had a share, e. g. if the witness had deposed to a conversation, the opposing counsel should indicate how much he accepts of such version or suggest to the witness different one. If he asks no question he would generally be taken to accept the witnesss account and he would not be allowed to attack it in his closing speech, nor would he be allowed in that speech to put forward an explanation where he had failed to cross-examine relevant witness on the point. 9. RELIANCE is also placed upon the decision of State of M. P. v. Harishankar Goel and Anr. , reported in 1997 (2) SCC 487 to submit on behalf of the petitioners that it is well settled law in determining compensation is that whether as a willing prudent purchaser, the authority would offer the same price sought to be awarded for the acquired land. 10. APPEARING on behalf of the respondents Mr. S. Pal submits that the compensation for the said land was determined in accordance with the provisions of Section 13 of the Metro Railways (Construction of Works)Act, 1978. Drawing the attention of this Court towards the provision of section 17 of the Act Mr. Pal submits that the provisions of Land Acquisition act, 1894 had no manner of application in determining the compensation for the said land. The attention of the Court is further drawn towards the provisions of sub-sections (4) and (5) of Section 16a of the said Act to submit that the duty was cast upon the appellant authority to determine the compensation for the land in question. The order of the appellate authority determining the amount under the aforesaid Act should be final. 11. The attention of the Court is further drawn towards the provisions of sub-sections (4) and (5) of Section 16a of the said Act to submit that the duty was cast upon the appellant authority to determine the compensation for the land in question. The order of the appellate authority determining the amount under the aforesaid Act should be final. 11. IT is submitted by Mr. Pal that in assessing the market value of the said land as on May 1985, no acceptable document was placed before the respondent No. 3. Xerox copy of the probates of will had been executed on July 7, 1996. There was no value which could be accepted. Drawing the attention of this Court towards the cross-examination of P. W. 1 dated september 13, 1991 (at page 92 to this writ application) it is submitted on behalf of the respondents that there was cross-examination with regard to the assessment report dated July 15,1991 and the supplementary assessment dated August 13,1991. It was also an admitted position no document was taken into consideration by the experts to assess the valuation of the said land. For that reason the same could not be accepted by the respondent No. 3 or the respondent No. 4. 12. IT is further submitted on behalf of the respondent authority that the value shown in the sale deed (Exhibit-2) was not accepted because the valuation was lower. It is further submitted by Mr. Pal that the sale deed dated February 14, 1966 of premises No. 2 Ganesh Chandra Avenue, calcutta was the only authentic document before the competent authority, i. e. the respondent No. 3. As a result, that was taken as a basis for determination the valuation of the said plot of land after escalation of the price of the land @ 50% from 1966 to 1985. So, valuation of selling of a similar plot of land @ Rs. 1,30,000/- per cottah in the year 1966 was taken as a basis to determine the market value of the said plot of land adding 50% for the purpose of determining the market value of the said plot of land @ 1,95,000/- per cottah in May 1985. 13. MR. Pal submits that the writ Court is to examine the decision making process of the determination of market value by the respondent nos. 3 and 4. Mr. 13. MR. Pal submits that the writ Court is to examine the decision making process of the determination of market value by the respondent nos. 3 and 4. Mr. Pal relied upon the decision of Kendriya Vidyalaya sangathan v. Dharmendra Sharma, reported in 2007 (8) SCC 148 and style (Dress Land) v. Union Territory, Chandigarh, reported in 1999 (7) SCC 89 to submit that the function of this Court is to examine the decision making process only. Relying upon the decision of Mrs. Labhkuwar bhagwani Shaha and Ors. v. Janardhau Mahadeo Kalan and Anr. , reported in air 1983 SC 535 Mr. Pal submits that the admission is the conclusive evidence. Repeating and reiterating his earlier submissions, Mr. Pal submits that there was admission on the part of the expert to the effect that the valuation report dated July 15, 1991 and the supplementary valuation report dated August 13, 1991 were prepared without having any supporting document. Relying upon the decision of Nagendra Nath Bora and Anr. v. Commissioner of Hills Division, reported in AIR 1958 SC 398 Mr. Pal submits that there was no error on the face of record. Therefore, no order can be passed in this writ application. Relying upon the decision of devinder Singh and Ors. v. State of Haryana and Anr. , reported in 2006 (5)SCC 720 Mr. Pal submits that in the event the authority had been misdirected the evidence in arriving at a conclusion, the same could be interfered with. But in this case there was no such scope. Mr. Pal relies upon the decisions of M/s. Bharat Barrel and Drum Mfg. Co. v. L. K. Bose and ors. , reported in AIR 1967 SC 361 and Syed Yakoob v. K. S. Radhakrishnan and Ors. , reported in AIR 1964 SC 477 in support of his above submissions. 14. I have heard to learned Counsels appearing on behalf of the respective parties and I have also considered the facts and circumstances of the case. The subject-matter of scrutiny in this writ application is the decision making process of determining the market value of the said plot of land as on May 17,1985, i. e. that date of publication of the Notification under Section 7 of the said Act in the official gazettee in respect of the said premises. 15. The subject-matter of scrutiny in this writ application is the decision making process of determining the market value of the said plot of land as on May 17,1985, i. e. that date of publication of the Notification under Section 7 of the said Act in the official gazettee in respect of the said premises. 15. IT is an admitted position that the respondent No. 3, being the competent authority took into consideration the valuation of the 2, G. C. Avenue, Calcutta @ Rs. 1,30,000/-per cottah as shown in a deed of conveyance which had been executed in the year 1966. Admittedly, it was taken into consideration for the reason that the above premises and the said premises were closely located. Then the competent authority came to a conclusion that escalation @ 50% per cottah should be reasonable to workout the market value of that land as on May 17,1985, i. e. after 19 years. It is not in dispute that no reason was assigned by the respondent no. 3 in his impugned order dated October 4,1991 in support of escalation of the market value @ 50% for period of 19 years in respect of the aforesaid premises. Admittedly, the respondent No. 3 calculated the escalation of market value of the aforesaid premises on the basis of guess work. It is also not in dispute that the respondent No. 3 while determining the market value of the said premises as on May 17,1985, came to a conclusion that the said premises was not vacant one. 16. IT is an admitted fact that the respondent No. 4 being the appellate authority, upheld the method adopted by the respondent No. 3 in determining the market value of the said premises as on May 17, 1985 so far as the question of taking the Deed of conveyance of 1966 into consideration was concerned. It is no in dispute that the respondent No. 4 examined the decision of the respondent No. 3 considering that the said premises was not vacant one at the time of taking over possession of the same. It is also an admitted fact that after examining the documents which had been available to the respondent No. 4, he affirmed the decision of the respondent No. 3 with the observations that the only document which was left for consideration was the Deed of conveyance of 2, Ganesh chandra Avenue, Calcutta. It is also an admitted fact that after examining the documents which had been available to the respondent No. 4, he affirmed the decision of the respondent No. 3 with the observations that the only document which was left for consideration was the Deed of conveyance of 2, Ganesh chandra Avenue, Calcutta. It was his further observation that the above document was of 1966 and as such in ordinary circumstances a document of such date ought not to have been considered for determining the value of land as on May 17, 1985. Ultimately, the respondent No. 4 came to the conclusion that there was no other alternative but to rely on the above document of 1966 since the petitioners had failed to bring any other document of value for consideration. 17. IN the aforesaid admitted facts and circumstances this Court is to examine the decision making process of taking into consideration the Deed of conveyance of 1966 for determining the market value of the said premises as on May 17, 1985 after escalation of that value @ 50% per cottah. 18. IN Chief Constable of North Wales Police v. Evans, reported in 1982 (3) All ER 141, Lord Hailsham said:- "the purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the Court". 19. ON the basis of the above principles of law, I find that the decision making process of considering the Sale Deed of 1966 to ascertain the market value of the said premises as on May 17,1985, on that ground of non-availability of any other acceptable document cannot be sustained in law. Further, I do not find any material-on-record in support of the guese work of adding 50% escalation per cottah of land for determining the market price of the said premises as on May 17,1985. 20. REGARDING the mode of discharging the function of the appellate authority, subsection (5) of Section 16 of the said Act cast a very responsible duty on the appellate authority in determining the market value of the property in question. Because such determination should be treated as final. 20. REGARDING the mode of discharging the function of the appellate authority, subsection (5) of Section 16 of the said Act cast a very responsible duty on the appellate authority in determining the market value of the property in question. Because such determination should be treated as final. Every attempt should have been made by the appellate authority to ascertain whether a willing purchaser would offer the same price which was sought to be awarded for the acquired land. In this regard the relevant portions of the decision of the State of M. P. v. Harishankar Goel, reported in 1997 (2) SCC 487 are quoted below:- "3. The question, therefore, is what would be the reasonable market value the lands are capable to fetch as on the date of the notification had it been sold in the open market to a willing purchaser? It is seen that when 33 and odd bighas of land was sought to be sold in the open market, no willing prudent purchaser would with any credulity agree to purchase it on sq. ft. basis. It is well-settled law that the Judge determining compensation in a compulsory acquisition should eschew feats of imagination; sit in the armchair of a willing purchaser and put a question to himself whether as a willing prudent purchaser, he would offer the same price sought to be awarded for the acquired land. It would, therefore, be clear that the learned Judges did not apply correct legal tests to determine the compensation but determined the compensation on the basis of sq. ft. which is illegal per se. We, therefore, hold that the learned Judges had applied the wrong principle of law in determining compensation. " 21. WITH regard to the question of taking over the vacant possession of the said premises. I find an admission on the part of the respondent authorities in Paragraph-11 of the affidavit-in-opposition affirmed on behalf of the respondent Nos. 1 to 5. Therefore, the decision making process followed in determining the market value cannot be sustained in law on the ground to error apparent on the face of record. 22. HOWEVER, I do not find substance in the submissions made on behalf to the petitioner that the market value as determined by Harish mukherjee and Co. should have been accepted by the respondent authorities. 22. HOWEVER, I do not find substance in the submissions made on behalf to the petitioner that the market value as determined by Harish mukherjee and Co. should have been accepted by the respondent authorities. Because, it is an admitted position that during cross-examination it was admitted by the above valuer that in support of expert opinion, he had not relied upon any document. 23. SINCE, this Court has only examined the decision marking process which was followed by the respondent authorities, the decisions of Kendriya Vidyalaya Sangathan (supra) and Style (Dress Land) (supra)does not help the respondent authorities in any way. It has been observed hereinabove that on the basis of the admitted facts of the case there was error apparent on the fact of records. So, the decision of Nagendra Nath bora and Anr. (supra) has no manner of application in this case. 24. IN view of the observations made hereinabove, the decisions of devinder Singh and Ors. , (supra), M/s. Bharat Barrel and Drum Mfg. Co. , (supra)and Syed Yakoob v. K. S. Radhakrishnan and Ors. , (supra) do not help the case of the respondents. 25. IN the above facts and circumstances, the order dated October 4, 1991 passed by the respondent No. 3 in claim Case No. 16/2/9/87 as also the order dated January 6, 1993 passed by the respondent No. 4 in c. A. No. 16/91 are quashed and set aside. The respondent No. 3 is directed to arrive at a decision afresh in the matter of awarding compensation to the petitioner in claim Case No. 16/2/9/87 in accordance with law in the light of the observations made hereinabove as expeditiously as possible preferably within 3 months. 26. THIS writ application is thus disposed of. There will be, however, no order as to costs.