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2017 DIGILAW 369 (CAL)

METRO RAILWAY v. ARIJIT MALLIK

2017-04-07

JYOTIRMAY BHATTACHARYA, MIR DARA SHEKO

body2017
JUDGMENT : Jyotirmay Bhattacharya, J. This First Appeal is directed against a judgment and decree dated September 28, 2001 passed by learned Additional Special Land Acquisition Judge, 4th Court at Alipore in LA Case No. 59 of 1992 at the instance of the requiring body-appellant. 2. Admittedly, the requiring body was not impleaded as party in the said land acquisition reference case. No notice was also served upon the requiring body in connection with the said proceeding. As such the requiring body could not know about the said proceeding which was ultimately decided in the absence of the requiring body. The valuation which was assessed by the Land Acquisition Collector was substantially enhanced by the learned Land Acquisition Judge. The enhancement was more than 3 times of the valuation which was assessed by the Land Acquisition collector. The Land Acquisition Collector while publishing award fixed the valuation of the said land at Rs.36,7,23 per cottah. However, the Land Acquisition Judge fixed the valuation of the acquired land at Rs.1,50,000/- per cottah. 3. The requiring body felt aggrieved. Hence the requiring body came forward by preferring this appeal. Since the requiring body was not a party in the proceeding under reference under Section 18 of the Land Acquisition Act, the requiring body sought for leave of this Court to file this appeal as a party adversely affected by the order impugned. Such leave was granted by this Court to the requiring body. Even delay in filing this appeal was also condoned. The requiring body was directed to deposit the entire enhanced amount of compensation as per the impugned judgment and decree passed by the learned Land Acquisition Judge. We are informed by Mr. Basu, learned Senior counsel appearing for the requiring body/appellant that the entire enhanced amount of compensation together with soletium and interest as per the impugned order has been deposited by his client with the learned Registrar General of this court and out of such deposit 75% thereof was allowed to be withdrawn by the referring claimant as per the order passed by this Court. We are also informed by Mr. Sanyal, learned Counsel appearing for the referring claimant that the award which was published by the Land Acquisition Collector was satisfied by the requiring body and his client has also withdrawn the said compensation which was awarded by the Collector. 4. We are also informed by Mr. Sanyal, learned Counsel appearing for the referring claimant that the award which was published by the Land Acquisition Collector was satisfied by the requiring body and his client has also withdrawn the said compensation which was awarded by the Collector. 4. We are also informed by him that 75% of the deposit made by the requiring body with this Court has also been withdrawn by his client as per the order passed by the other Division Bench of this Court on 30th August, 2012. Rest of such deposit was invested in short-term fixed deposit with a nationalized Bank. 5. The question which is raised in this appeal by Mr. Basu, learned Senior Counsel is as to whether the assessment of the valuation of the land acquired by the learned Land Acquisition Judge in the absence of the requiring body, is sustainable in law or not. The answer to the question is no longer a res integra in view of several decisions of the Hon'ble Supreme Court; some of such decision of the Hon'ble Supreme Court may be mentioned hereunder. 1. In the case of U.P Abas Evam Vikash Parishad v. Gayan Devi reported in AIR 1995 SC 724 2. In the case of Kanak (smt) & Anr. v. U.P Abas Evam Vikash Parishad & Ors. reported in (2003) 7 SCC 693 . 3. In the case of Delhi Development Authority v. Bhola Nath Sharma (dead) by LRS. & Ors. reported in (2011) 2 SCC 54 . 6. Considering the provision of Section 50(2) of the Land Acquisition Act, it was uniformly held by the Hon'ble Supreme Court in all those decisions that the requiring body should not only be impleaded as a party in such proceeding, but also notice was required to be served upon such requiring body in the reference under Section 18 of the Land Acquisition Act. The Hon'ble Supreme Court also held that the participation of the requiring body in the process of assessment of the compensation to be awarded for the land acquired both before the Collector and the learned Land Acquisition Judge, in the reference case, cannot be avoided as the ultimate liability to pay the awarded compensation and/or the enhanced compensation will lie upon the requiring body. Even this Court, by following the principles as laid down in those cases of the Hon'ble Apex Court, delivered a judgment (on 31st August, 2016) on the identical issue in the same manner in the case of Union of India & Anr. v. Mafizuddin Ahamed & Ors. (unreported judgment). 7. If we consider the present problem in the light of the aforesaid decisions of the Hon'ble Supreme Court as well as of this court, we have no hesitation to hold that the impugned order cannot be retained on record as the assessment was made by the learned Land Acquisition Judge not only without impleading the requiring body as a party in the said proceeding but also without service of notice about initiation of such proceeding upon the requiring body, but in the peculiar facts of the instant case, we feel some departure is necessary in the facts of the present case for the reasons as stated hereunder. 8. Here is the case where we find that another property belonging to the referring claimant adjoining property in question was also acquired by the State for implementation of the very same Metro Railway Project; though by issuance of a separate notification but on the same day i.e., on 3rd October, 1972 when notification was issued for acquiring the premises-in-question. The valuation of the other acquired premises being premises No. 129 Bidhan Sarani which was a premises adjacent to the acquired premises belonging to the referring claimant, was fixed by the learned Land Acquisition Judge at Rs. 1,27,700/- per cottah. The Metro Railway Authority felt aggrieved against the said award passed by the learned Land Acquisition Judge in case No. L.A Case No. 11 of 1992(V). As such, the Metro Railway Authority preferred an appeal challenging the said award before this Hon'ble court and the said appeal which was registered as F.A.T No. 333 of 1997 was dismissed on contest. 9. We are informed by Mr. Basu, Learned Senior Counsel appearing for the appellant that the award which was passed by the learned Land Acquisition Judge in the said reference case being L.A. Case No. 11 of 1992(V) was satisfied by his client after the First Appeal preferred by his client challenging the said award, was dismissed by this Hon'ble Court. 10. Basu, Learned Senior Counsel appearing for the appellant that the award which was passed by the learned Land Acquisition Judge in the said reference case being L.A. Case No. 11 of 1992(V) was satisfied by his client after the First Appeal preferred by his client challenging the said award, was dismissed by this Hon'ble Court. 10. On perusal of the impugned order we find that the Learned Land Acquisition Judge, while disposing of this appeal also assessed the valuation of the acquired property of the referring claimant primarily and mainly on the basis of the valuation of the other adjoining premises belonging to the claimant as referred to above. The learned Land Acquisition Judge thus, held that the valuation of the land of the acquired property will be Rs.1,27,700/- per cottah and in addition thereto, 15% escalation was allowed on the land value, after considering the respective advantage and land utilization value of both the aforesaid premises of the referring claimant. 11. It was held by the learned Land Acquisition Judge that the land value of the acquired premises belonging to the referring claimant is more than the land value of the other premises belonging to the referring claimant which was acquired earlier as the premises now in dispute had three main approach roads on three sides of the said building while the other property belonging to the said claimant which was earlier acquired had two approach roads on two sides of the said building. The learned Land Acquisition Judge while allowing such escalation also took note of the fact that the acquired premises in dispute belonging to the referring claimant is much more closer to the Shyam Bazar 5 point crossing than the other premises belonging to the said claimant which was acquired by the Government earlier for the said project. 12. Considering the fact that the Metro Railway Authority, viz., requiring body satisfied the enhanced award passed by Land Acquisition Judge in respect of the other premises belonging to the same claimant this Court is of the view that the Metro Railway Authority is now estopped from challenging the correctness of the assessment of land value which was fixed @ Rs. 1,27,700/- per cottah by keeping parity with the land value as assessed b y the land Acquisition Judge in respect of the other adjoining premises belonging to the same claimant. 1,27,700/- per cottah by keeping parity with the land value as assessed b y the land Acquisition Judge in respect of the other adjoining premises belonging to the same claimant. Thus, the scope of challenge in this appeal, in our view, is very limited. The appellant at best can challenge the legality and/or correctness of the escalation part which was allowed in the present case against the claimant's claim of 20% escalation. 13. Thus, we feel that learned Land Acquisition Judge did not commit any illegality in accepting the value of the land acquired as Rs.1,27,000/- per cottach as the requiring body accepted the correctness of the valuation of the land of the adjoining premises @ Rs.1,27,7000- per cottah. As such we hold that this part of the finding of the Land Acquisition Judge attained its finality and is also building upon the requiring body for the reason as aforesaid. Thus, the requiring body is estopped from challenging the correctness of such findings of the Court below. 14. However, by taking note of the decision of the Hon'ble Supreme court as referred to above, we feel that the reference case may be sent back to the learned Land Acquisition Judge on remand for fresh consideration of the issue relating to the escalation part which was allowed by the learned Land Acquisition Judge by taking into consideration the favourable situation of the property acquired in the present case. We, thus, confirm the correctness of the selection of the basis of calculation of the valuation of the acquired property belonging to the referring claimant in the instant case at Rs.1,27,700/- per cottah as was made by the learned Land Acquisition Judge in the impugned order. As such this part of the dispute between the parties cannot be reopened at the time of consideration of the reference case by the learned Land Acquisition Judge even after remand. The learned Land Acquisition Judge is, thus, directed to reconsider the escalation part which was allowed in the present case in the presence of the requiring body/ appellant. We, thus, direct the learned Land Acquisition Judge to implead the requiring body suo motu in exercise of its power under Order 1, Rule 10 (2) of the Code of Civil Procedure. However, service of notice relating to the said proceeding upon the referring claimant is dispensed with. We, thus, direct the learned Land Acquisition Judge to implead the requiring body suo motu in exercise of its power under Order 1, Rule 10 (2) of the Code of Civil Procedure. However, service of notice relating to the said proceeding upon the referring claimant is dispensed with. The referring claimant is, thus, permitted to participate in the said proceeding at the time of hearing of the said reference case in the light of the observation made herein above. It is made clear that the requiring body will be permitted to file its objection in connection with the said proceeding within four weeks from the date. The requiring body is also permitted to adduce evidence in support of its claim under objection in the said proceeding and it may also examine its own witness and cross-examine the witness its adversaries. Similarly, in case any evidence is adduced by the requiring body in connection with the said proceeding, the referring claimant will also be permitted to cross-examine the witnesses of the requiring body. 15. The learned Land Acquisition Judge is requested to expedite the disposal of the said proceeding as far as possible but preferably by the end of this year of 2017 without granting any unnecessary adjournment to any of the parties. 16. The requiring body is permitted to withdraw the balance of the deposited amount together with interest accrued thereon with the learned Registrar General of this Court, and re-deposit the same with the learned Land Acquisition Judge within two weeks from the date of withdrawal of such deposit from this Court. The learned Registrar General is also directed to pay the said amount to the requiring body subject to compliance of the necessary formalities in this regard. On such re-deposit being made by the requiring body with the learned land Acquisition Judge, the learned Land Acquisition Judge will calculate the compensation payable by the requiring body for acquiring the said premises on the basis of the impugned award which we confirm herein and will allow the referring claimant to withdraw the same and the balance amount will be invested in short-term fixed deposit with any nationalized bank and such deposit will be kept alive till the disposal of the said proceeding. Needless to mention here that in the event it is found that the amount which the referring claimant has already withdrawn from this court exceeds the amount of compensation payable to him as per the award of the learned Land Acquisition Judge which is confirmed by us herein above, the referring claimant will have to deposit the said amount in connection with the said proceeding within two weeks after such calculation will be made by learned Land Acquisition Judge. 17. The appeal is allowed in part. 18. The appeal is thus, disposed of. 19. Let the lower Court record be sent down to the court below by Special Messenger at the cost of the Referring Claimant to be deposited within a week. 20. Drawing up the decree is dispensed with. 21. Urgent photostat certified copy of this order, if applied for, be furnished to the appearing parties on priority basis.