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2014 DIGILAW 404 (TRI)

Executive Officer v. Rakhal Chandra Karmakar

2014-11-28

DEEPAK GUPTA

body2014
JUDGMENT Deepak Gupta, J. 1. By means of this judgment, four appeals being L.A. Appeal 23 of 2008, L.A. Appeal 24 of 2008, L.A. Appeal 86 of 2008 and L.A. Appeal 87 of 2008 are being disposed of since they arise out of one award dated 30-05-2008 passed by the learned Land Acquisition Judge (L.A. Judge), West Tripura, Khowai in case No. Misc.(L.A.) 01 of 2008 and Misc.(L.A.) 02 of 2008 whereby he assessed the value of the land of the petitioners at Rs. 2,00,50,000/- per kani. 2. Briefly stated, the facts of the case are that vide notification published on 07-07-2006, 0.014 acres of land in Khowai town was acquired for purposes of construction of shopping complex at Subhas Park. It is not disputed that out of this 0.014 acres, .008 acres was owned by Smti. Mina Chakraborty and 0.006 acres by Rakhal Chandra Karmakar. Declaration under section 6 of the Land Acquisition Act, 1894 (L.A. Act) was issued on 11-08-2006 and the learned Land Acquisition Collector (L.A. Collector) assessed the compensation at Rs. 30,00,000/- per kani. 3. Aggrieved by the said award, the land owners filed petitions under section 18 of the L.A. Act. The petitions have been disposed of by a common judgment and the Land Acquisition Judge (L.A. Judge) has assessed the compensation at Rs. 2,00,50,000/- per kani. This award has now been challenged by the Executive Officer, Khowai Nagar Panchayat, Khowai in L.A. Appeal No. 23 of 2008 and L.A. Appeal No. 24 of 2008 and the land owners have claimed higher compensation in L.A. Appeal No. 86 of 2008 and L.A. Appeal No. 87 of 2008. 4. With regard to the appeals filed by the Khowai Nagar Panchayat, Sri Sankar Lodh, learned counsel for the claimant-respondents, has raised a preliminary objection that the appeals are not maintainable since no leave of the Court has been sought to file an appeal. In this behalf, Sri Lodh has relied upon the judgment of the Apex Court in U.P. Awas Evam Vikas Parishad v. Gyan Devi and another, ( AIR 1995 SC 724 ) in which the Apex Court held that when land is acquired for local authority or Company, the said local authority or Company has certain rights to appear before the Land Acquisition Collector and adduce evidence for determination of compensation. The conclusions of the Apex Court are contained in para-25 which reads as follows:- "25. To sum up, our conclusions are: 1. Section 50(2) of the L.A. Act confers on a local authority for whom land is being acquired a right to appear in the acquisition proceedings before the Collector and the reference Court and adduce evidence for the purpose of determining the amount of compensation. 2. The said right carries with it the right to be given adequate notice by the Collector as well as the reference Court before whom acquisition proceedings are pending of the date on which the matter of determination of compensation will be taken up. 3. The proviso to S. 50(2) only precludes a local authority from seeking a reference but it does not deprive the local authority which feels aggrieved by the determination of the amount of compensation by the Collector or by the reference Court to invoke the remedy under Art. 226 of the Constitution as well as the remedies available under the L.A. Act. 4. In the event of denial of the right conferred by S. 50(2) on account of failure of the Collector to serve notice of the acquisition proceedings the local authority can invoke the jurisdiction of the High Court under Art. 226 of the Constitution. 5. Even when notice has been served on the local authority the remedy under Art. 226 of the Constitution would be available to the local authority on grounds on which judicial review is permissible under Art. 226. 6. The local authority is a proper party in the proceedings before the reference Court and is entitled to be impleaded as a party in those proceedings wherein it can defend the determination of the amount of compensation by the Collector and oppose enhancement of the said amount and also adduce evidence in that regard. 7. In the event of enhancement of the amount of compensation by the reference Court if the Government does not file an appeal the local authority can file an appeal against the award in the High Court after obtaining leave of the Court. 8. In an appeal by the person having an interest in land seeking enhancement of the amount of compensation awarded by the reference Court, the local authority should be impleaded as a party and is entitled to be served notice of the said appeal. 8. In an appeal by the person having an interest in land seeking enhancement of the amount of compensation awarded by the reference Court, the local authority should be impleaded as a party and is entitled to be served notice of the said appeal. This would apply to an appeal in the High Court as well as in this Court. 9. Since a company for whom land is being acquired has the same right as a local authority under S. 50(2), whatever has been said with regard to a local authority would apply to a company too. 10. The matters which stand finally concluded will, however, not be reopened." 5. Sri Lodh has relied upon condition No. 7 which says that in the event of enhancement of the amount of compensation if the Government does not file an appeal, the local authority can file an appeal against the award after obtaining leave of the Court. Sri Lodh submits that since the Khowai Nagar Panchayat has not obtained leave of the Court, therefore, it is not entitled to maintain this appeal having not sought leave of the Court. In this regard, reference may be made to Sections 50 and 54 of the L.A. Act which read as follows:- "50. Acquisition of land at cost of a local authority of Company. - (1) Where the provisions of this Act are put in force for the purpose of acquiring land at the cost of any fund controlled or managed by a local authority or of any Company, the charges of any incidental to such acquisition shall be defrayed from or by such fund or Company. (2) In any proceeding held before a Collector or Court in such cases the local authority or Company concerned may appear and adduce evidence for the purpose of determining the amount of compensation: Provided that no such local authority or Company shall be entitled to demand a reference under section18. 54. Appeals in proceedings before Court. (2) In any proceeding held before a Collector or Court in such cases the local authority or Company concerned may appear and adduce evidence for the purpose of determining the amount of compensation: Provided that no such local authority or Company shall be entitled to demand a reference under section18. 54. Appeals in proceedings before Court. -Subject to the provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award, of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in section 110 of the Code of Civil Procedure, 1908, and in Order XLIV thereof." 6. Section 50(2) clearly lays down that in any proceeding before a Collector or Court, the local authority or Company for whose purpose the land is acquired may appear and adduce evidence for determining the amount of compensation. Section 54 provides that an appeal against the award of the Land Acquisition Judge shall lie to the High Court. 7. In U.P. Awas's case, the Apex Court has clearly held that since the amount of compensation is to be paid by the local authority and it has an interest in determination of the said amount which fact is recognised in section 50(2) of the L.A. Act, the local authority would be a person aggrieved. Therefore, the local authority has a right to appear before the Collector and lead evidence before the Collector. 8. The Apex Court further held that in proceedings before the L.A. Judge under section 18 or 30 of the Act, the local authority for whom the land is being acquired is a necessary party and has a right to appear and adduce evidence before the Court. It was further held that failure to give notice at the stage of deciding a petition under section 18 or 30 would result in denial of the right to the local authority. The Apex Court went on to hold that the local authority is entitled to be impleaded as a party in proceedings before any Court. It was further held that failure to give notice at the stage of deciding a petition under section 18 or 30 would result in denial of the right to the local authority. The Apex Court went on to hold that the local authority is entitled to be impleaded as a party in proceedings before any Court. The observations regarding seeking leave to appeal have been made in the context where the local authority is not impleaded as a party before the reference Court. In such circumstances, the Apex Court held that even if the local authority was not made a party but if it was aggrieved by the award, it could obtain leave of the High Court and file the case. The observation that the appeal can be filed with leave of the Court has to be read in this context. 9. Section 54 of the Act does not contemplate seeking of leave to appeal. It appears to me that the observation that the local authority can file appeal after obtaining leave of the Court has been made with regard to those cases where the local authority or Company had not been impleaded as a party before the Land Acquisition Judge. In the present case, the appellant was a party before the L.A. Judge. Every party to a lis has a right to file an appeal if it is aggrieved by the judgment. The observations made in sub para-7 of para-25, in my opinion, will not apply in those cases where the local authority or Company is a party to the proceedings before the L.A. Judge. Where it is not a party, then obviously it shall have to seek leave of the Court to file the appeal. In the present case since the appellant was a party, this objection is rejected. 10. On merits, reference may be made to the various sale deeds relied upon by the parties. At the outset, it may be noticed that the notification under section 4 was published on 07-07-2006 and in terms of the first clause of section 23 of the L.A. Act, the market value of the land has to be determined on the date of publication of the notification under section 4, sub-section (1). The land owners relied upon two sale deeds. The first is sale deed No. 1-928 dated 10-04-2006 and the second is sale deed No. 1-2072 dated 09-08-2006. The land owners relied upon two sale deeds. The first is sale deed No. 1-928 dated 10-04-2006 and the second is sale deed No. 1-2072 dated 09-08-2006. In my opinion, the second sale deed cannot be taken into consideration since that is of a date posterior to the notification under section 4 and, therefore, that is excluded. 11. The L.A. Collector while assessing the compensation relied upon 4(four) sale deeds which are as follows:- 12. The claimants relied upon two sale deeds. The first is dated 10-04-2006 whereby 1 kranta 17 dhurs of land was sold for consideration of Rs. 3,00,000/- and this works out to approx Rs. 3,90,00,000/- per kani. The other sale deed relied upon by the claimants is dated 09-08-2006. However, in my opinion, this sale deed cannot be taken into consideration since this sale deed is after the date of notification. Out of the sale deeds relied upon by the parties, the land value varies from Rs. 32,00,000/- per kani to almost Rs. 3,90,00,000/- per kani. It is more than apparent that land price was increasing day by day and the value of the land in the heart of the town is not to be measured in kanis but in square feet. Even if the sale deed dated 09-08-2006 is excluded, the value of the land by taking an average price of all these five sale deeds works out to Rs. 1,18,80,000/- per kani which is rounded off to Rs. 1,21,00,000/- per kani. 13. In view of the above discussion, the value of the land is assessed at Rs. 1,21,00,000/- per kani. Since the last sale deed shows substantial increase in price and there is indication that prices were increasing, the value is assessed at Rs. 1,33,00,000/- per kani by giving an increase of 10% in market value. On this amount, the claimants shall be entitled to additional compensation, solatium and interest as per the provisions of the L.A. Act. 14. Consequently, the L.A. Appeal 23 of 2008 and L.A. Appeal 24 of 2008 are partly allowed whereas L.A. Appeal 86 of 2008 and L.A. Appeal 87 of 2008 are dismissed. 15. Send down the lower court records forthwith.