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2017 DIGILAW 221 (TRI)

Akehir Miah Palwan v. Land Acquisition Collector

2017-05-08

S.TALAPATRA

body2017
JUDGMENT : This is an appeal under Section 54 of the Land Acquisition Act, 1894 from the judgment and award dated 25.02.2013 delivered in Misc. (LA) No.11 of 2011 by the Land Acquisition Judge, South Tripura, Udaipur as he then was. 2. The land measuring 0.37 acres was acquired by the respondents for construction of Gomati right bank main canal at Mouja Tepania under Udaipur Sub-division. For the purpose of emergent acquisition, the notification under Section 17 of the Land Acquisition Act under No.F.9(6)REV/ACQ/IX/2009 was published on 29.08.2009. As sequel, the notification of the even number dated 22.10.2009 was published under Section 6 of the Land Acquisition Act. 3. The Land Acquisition Collector, South Tripura, Udaipur [now Gomati District], the respondent No.1, carried out his inquiry and for purpose of having an appropriate rate for the land he appreciated as many as 8(eight) sale-deeds and found their rate as under: Sl. No. Sale deed No. Class Area in acres Rate per kani Date of reg. 1 1-784 Bagan 0.12 3,00,000/- 6/05/2009 2 1-932 Chara 0.15 1,06,666/- 1/06/2009 3 1-986 Lunga 0.10 10,00,000/- 8/06/2009 4 1-989 Nal 0.10 1,20,000/- 8/06/2009 5 1-1021 Viti 0.20 70,000/- 10/06/2009 6 1-760 Bastu 0.10 2,00,000/- 4/05/2009 7 1-776 Tilla 0.06 1,00,000/- 5/05/2009 8 1-418 Lunga 0.03 66,666/- 5/03/2009 4. It is not also in dispute that all the other components of the compensation under Section 23 of the Land Acquisition Act have formed the award. The appellants acquired the land pertaining to Khatian No.436 and plot No. 1202 of Mouja Tepania. For purpose of determining the land value, the Collector had also considered the valuation chart dated 10.12.2008 for Mouja Tepania as published by the Sub-Divisional Magistrate, Udaipur with approval from the District Magistrate and Collector, South Tripura. According to the said land valuation chart which is reproduced hereunder the rate for various categories of land covered by the plot nos.430-450 is Rs.5,00,000 for bastu, Rs.5,00,000 for viti, Rs.2,00,000/- for nal, Rs.2,00,000/- for lunga, Rs.5,00,000/- for tilla, Rs.3,00,000/- for dokan, Rs.5,00,000/- for others. The rate for the commercial land for Rs.10,00,000/-. From the survey as carried out by the Collector, it appears that the land that has been acquired from the appellants pertaining to Khatian No.436, plot No.1202/P falls in the category of nal having an area of 0.37 acre. The rate for the commercial land for Rs.10,00,000/-. From the survey as carried out by the Collector, it appears that the land that has been acquired from the appellants pertaining to Khatian No.436, plot No.1202/P falls in the category of nal having an area of 0.37 acre. The Land Acquisition Collector determined the rate @Rs.80,000/- per kani and accordingly the award was prepared. 5. Being aggrieved by the said award of the Collector, the appellants sought the reference under Section 18 of the Land Acquisition Act for having the market rate of the said land. The reference being Misc.(LA) No.11 of 2011 has been answered by the judgment dated 25.02.2013 by the Land Acquisition Judge by awarding a sum of Rs.2,00,000/- per kani along with the other components of the compensation provided under Section 23 of the Land Acquisition Act. Being aggrieved by the award, the appellants, the land-losers, have approached this court by means of this appeal. 6. Mr. D. C. Saha, learned counsel appearing for the appellants has submitted that the Land Acquisition Judge failed to consider the sale deed No.323/09 [Exbt.2] and the report of the Tehashildar [Exbt.3]. Mr. Saha, learned counsel has brought to the notice of the court the following finding of the Land Acquisition Judge in respect of the said documentary evidence: “The acquired land is non-residential but agricultural land as per the assessment note. It appears from the assessment note that bagan class of land was sold out @ Rs.3 lakhs, per kani, vide sale deed No.1/784 executed on 06.05.2009 and bastu class of land was sold out @ Rs.2 lakhs, per kani, vide sale deed No.1/760 executed on 04.05.2009. Tilla class of land was also sold out @ Rs.1 lakh, per kani, vide sale deed No.1/776. The claimant petitioners side produced one sale deed, Exbt.1. As per the sale deed, the land appertaining to dag No.167, R.S. Plot No.123 and Jote No.96 was sold out @ Rs.2 lakhs, per kani, and the land is under the same Mouja- Tepania under Salgarah Tehsil. As per the proforma and land valuation report issued by the Tehsildar (Exbt.3), the land is situated at a distance of 76 mtrs. from the main road.” It appears from the impugned judgment that the land valuation chart was treated as the basis of the said judgment. As per the proforma and land valuation report issued by the Tehsildar (Exbt.3), the land is situated at a distance of 76 mtrs. from the main road.” It appears from the impugned judgment that the land valuation chart was treated as the basis of the said judgment. On considering all aspects, the rate was enhanced from Rs.80,000/- per kani to Rs.2,00,000/- per kani for determination of the compensation. 7. Mr. D.C. Saha, learned counsel appearing for the appellants has thereafter stated that the sale deed No.1-323 dated 19.02.2009 as produced by the appellants [Exbt.2, not Exbt.1 as referred in the judgment and award] has not at all been appreciated by the Land Acquisition Judge. Moreover, he has wrongly referred the rate from the said sale-deed dated 19.02.2009. According to the appellants, on 19.02.2009, 0.08 acre of land, of nal class, was sold out @ 2,00,000/-. The Land Acquisition Judge has misread it as @ Rs.2,00,000/- per kani. If the value for 0.08 acre is converted, it would be Rs.10,00,000/- per kani. Mr. Saha, learned counsel has in order to buttress his contention has referred to a decision of the apex court in Nelson Fernandes & Ors. vs. Spl. L.A.O. South Goa & Ors. reported in AIR 2007 SC 1414 , where the apex court has observed inter alia as under: “In our opinion, the High Court has adopted a rough and ready method for making deductions which is impermissible in law. We have already noticed the valuers report. No reason whatsoever was given by the Reference Court or by the High Court as to why the report of the valuer and her evidence cannot be relied on. In our opinion, the compensation awarded by the High Court had no basis whatsoever and was not supported by cogent reasons and that it did not consider the future prospect of the development of the land in question. The High Court also did not assess the injury that the appellant is likely to sustain due to loss of his future earnings from the said land and also did not assess the damage already suffered due to diminution of the profits of the land between the time of publication of the notice and time of the collector taking possession. The Division Bench of the High Court has miserably erred in passing the order impugned thereby reducing the rate of compensation from Rs. The Division Bench of the High Court has miserably erred in passing the order impugned thereby reducing the rate of compensation from Rs. 192/- to Rs. 38/- and in utter mis-reading of the evidence on record and acted in a flagrant error of law and facts. In our view, the orders passed by the Division Bench resulted in manifest injustice being caused to the appellants. The High Court also erred in passing the order by holding that the opinion of the government approved valuer was not based on any opinion method of valuation but solely on the basis of facilities available to the land. In our view, the High Court ought to have appreciated that the government approved valuer is an expert in her field and the opinion of such an expert ought not to have been rejected shabbily.” 8. Another decision of the apex court in Chindha Rakira Patil (D) through L.Rs. vs. The Special Land Acquisition Officer, Jalagaon reported in AIR 2012 SC 481 has been referred by Mr. Saha to contend that there cannot be any average sale price of the transactions for purpose of determining the land value. But the relevant factors viz. productivity, location etc. are to be taken into consideration. 9. This court has failed to understand why the decision has been relied in the present context as it would be apparent that one of the appellants namely Mirja Hossain Palwan [PW-1] testified in the proceeding before the Land Acquisition Judge and simply stated that the market value of the land would be Rs.10,00,000/- per kani. PW-1 has solely based on the said sale deed dated 19.02.2009. No settlement map for purpose of determination of location has been placed in the records. 10. Mr. P. Gautam, learned counsel appearing for the respondents has submitted that the Land Acquisition Judge has awarded the just value of the acquired land and no further enhancement is required. There is no evidence as were to support further enhancement of the rate. 11. True it is that the Land Acquisition Judge has misread the sale deed dated 19.02.2009 so far its land price is concerned. It cannot also be denied that the said land situates in the same mouja, but on a different khatian. The land covered by the said sale-deed [Exbt.2] pertains to Khatian No.173 under the same mouja. 11. True it is that the Land Acquisition Judge has misread the sale deed dated 19.02.2009 so far its land price is concerned. It cannot also be denied that the said land situates in the same mouja, but on a different khatian. The land covered by the said sale-deed [Exbt.2] pertains to Khatian No.173 under the same mouja. It would be apparent from the land chart that the land belonging to the said khatian brings the said amount of Rs.2,00,000/- for nal class of land. Even if the solitary sale instance is taken into consideration, but based on it the land price of the acquired land cannot be determined on comparison as the appellants did not lead any concrete evidence as to the location. 12. Thus, this court is of the view that it would not be safe to rely on the rate of the small pieces of land for comparing with the larger piece of land. However, having a conjoint reading of the land value chart and the sale-deed dated 19.02.2009 [Exbt.2], this court is of the view that Rs.4,00,000/- per kani instead of Rs.2,00,000/- per kani as awarded by the Land Acquisition Judge will be proper the rate to assess the loss from the acquisition and to draw the award. The appellants would also be entitled to solatium under Section 23(2) of the Land Acquisition Act with interest @9% per annum for one year from the date of notification under Section 4 of the Land Acquisition Act, 1894 and 15% per annum thereafter. The appellants are further entitled to additional amount at 12% under Section 231A of the Land Acquisition Act with interest in the said manner. Thus the total compensation be assessed. Interest has been provided in terms of the apex court decision as recorded in General Manager, Oil and Natural Gas Corporation Ltd. vs. Rameshbhai Jivanbhai Patel & Anr. reported in 2008 AIR SCW 5947. In the result, this appeal stands allowed. Draw the award accordingly. Send down the LCRs thereafter.