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2018 DIGILAW 462 (GAU)

E. Lalthangliani v. District Collector, Aizawl

2018-03-16

PRASANTA KUMAR DEKA

body2018
JUDGMENT & ORDER : 1. Heard Mr. C. Lalramzauva, learned Senior Advocate assisted by Mr. Jonathan L.Sailo, learned counsel appearing for the appellant and also heard Mr. Rosangzuala Ralte, learned Govt. Advocate and Mrs. Linda L.Fambawl, learned Govt. Advocate. 2. The present appellant being aggrieved by the judgment and order dated 4.4.2017 passed by the learned Addl. District Judge, Aizawl Judicial District, Aizawl passed in L.A. Case No. 20/2014 has preferred this appeal u/s 54 of the Land Acquisition Act, 1894. 3. The appellant in his petition for enhancement pleaded that the Government of Mizoram took steps for acquiring land measuring 2305467.26 sq.ft. for construction of road from Sihmui to Ramrikawn under the provision of the Land Acquisition Act, 1894 (in short the Act) . The land was acquired for public purpose and the Revenue department, Govt. of Mizoram issued notification dated 20.3.2013 u/s 4 (1) of the Act, and the appellant submitted objection. In award No. 1/2013 the land of the appellant was grouped under Group-B located at nearby the road from Sihhmui to university Road. The land of the appellant was acquired after assessing the value @ Rs. 60 per Sq.ft. area of land. While determining the value of the land of the appellant covered by LSC Nos. AZL-1308 of 1984,AZL-1250 of 1984, AZL-1306 of 1984,AZL-1307 of 1984 and AZL 262 of 1985, the District Collector did not consider the matter as per the guidelines prescribed by the Hon’ble Supreme Court, like prevailing market rate and the market value of other similarly situated land in and around the Aizawl city including that of the one acquired for BSF. Further it was stated that owing to severance of the acquired portion of the land, the left over land had become unusable considering the reduction in the size of the plot of land. The potentiality for development and location of her land were also not taken into consideration by the District Collector. Hence the appellant made a prayer before the learned Reference Court to fix the market value of her land not lesser than Rs.1,500/- per sq.ft. The potentiality for development and location of her land were also not taken into consideration by the District Collector. Hence the appellant made a prayer before the learned Reference Court to fix the market value of her land not lesser than Rs.1,500/- per sq.ft. Along with the said rate she also sought for the solatium of 30% on the market value of her land u/s 23 (2) of the Act, interest @ 12% per annum on the market value of her land u/s 23 (1A) of the Act and the consequent direction to the Collector to pay interest on the excess compensation. 4. The District Collector filed the written statement disputing the claim for enhancement of the market value. The acquisition of land for establishment of BSF Composite Hospital as referred to by the appellant which was valued @ Rs. 150 per sq.ft. cannot be compared with the land of the present appellant. The land acquired for the establishment of the composite hospital had a peculiar advantage with its location in addition to the natural spring water source existing thereon. Moreover the said land acquired for BSF was well developed with residential school building and play ground and the same was nearby to the Synod Hospital. However the District Collector did not raise any objection so far the claim of solatium and interest are concerned. On the basis of the pleadings the learned Reference Court framed the following issues: "i. Whether the reference application is maintainable in its present form and style ? ii. Whether the market value fixed by DC in Award No. 1 of 2013 for Group B undervalued ? if so iii. What should be the enhanced market value of these lands? iv. Whether the claimant is entitled to solatium and interest ? v. Whether the claimant is entitled to interest on excess compensation as per Section 28 of LA Act, 1894? vi. Whether the claimant is entitled to the relief claimed ? if so, to what extent ?" 5. In the course of trial both the parties adduced evidence. The appellant as the plaintiff deposed that the portion acquired by the Government is smaller in size thereby leaving a larger size of hers land rendering it unusable. The land is situated close to the Central Jail and the road from Aizawl to Sairang Via Lungverh is adjacent to her land in the eastern side. The appellant as the plaintiff deposed that the portion acquired by the Government is smaller in size thereby leaving a larger size of hers land rendering it unusable. The land is situated close to the Central Jail and the road from Aizawl to Sairang Via Lungverh is adjacent to her land in the eastern side. The land is not connected by the National Highway and the road adjacent to his land is also not the main road from Sirang to Aizawl. The witness of the respondent side in her cross examination deposed that while assessing the value of the land, location is the lone guiding factor and she is unaware if the land falls within the residential area. The learned Court below in order to ascertain the market value of the landed property of the appellant, appointed an Advocate Commissioner who duly submitted the report. The Director of Land Revenue and Settlement Department in compliance of the order passed by the learned Reference Court submitted sale/purchase documents of land covered under LSC No. 103602/01/61 of 2007 dated 2.5.2014 wherein the rate of sale was shown as Rs 130 per Sq.Ft. On the other hand the sale/purchase document of land covered by LSC No. 2518/90 dated 9.10.2015, the rate of sale was Rs.27.30 per sq.ft. The purchasers and sellers of the said land were examined as Court witness. 6. The learned court below further verified the land of the appellant with the help of the Surveyor, SDO (PWD) in presence of learned counsels for both the parties and as per the report it came to the conclusion that the concrete building of the appellant was rented to Airtel Company. The land is supported with the basic amenities like Electricity, Water Supply connection etc and within its vicinity Industrial Growth Center, BSNL office, Picnic spot and number of residential buildings are also available. The learned court below considering the aforesaid materials came to the finding that the land of the appellant has the potentiality of being further developed considering the amenities within the surroundings of the land so acquired. It also came to the conclusion that the land acquired is located near the metal road i.e the land is abutted by the road leading to the University. It also came to the conclusion that the land acquired is located near the metal road i.e the land is abutted by the road leading to the University. Accordingly, the learned court below came to the conclusion that the market value assessed by the District Collector was not as per the various guidelines of the Hon’ble Apex Court. Considering the entire relevant factors on the basis of the commission report, sale/purchase value of land of the Land Revenue Department and considering the high escalation in the market value of the land, enhanced the value of the land to Rs.90 per sq.ft. covered by the aforesaid Land Settlement Certificate. Thereafter the learned Court below held rest of the issues in favour of the appellant. 7. The order of the learned Reference Court is reproduced below: "14. Hence, the Collector shall reassess the market value of the plaintiff Smt. E. Lalthanglianis land covered by LSC Nos. 1308 of 1984AZL-1250 of 1984, AZL 1306 of 1984, AZL 1307 of 1984 and the plaintiff Smt. Lalramzauvis land covered by LSC No. AZL 262 of 1985 at the rate of Rs 90 per square feet along with 30 % as solatium under Section 23 (2) of the Act and interest at the rate of 12 % per annum on the market value of the plaintiffs lands under Section 23 (1A) of the said Act. The District Collector shall pay interest under Section 28 at the rate of 9% per annum on the amount of the compensation awarded by this Court, i.e. in excess of the amount awarded as compensation by the Collector with effect from the date of possession up to one year and thereafter at the rate of 15% per annum till payment and the District Collector shall pay interest under Section 34 at the rate of 9% on the compensation awarded by the Collector not paid before or at the time of taking possession with effect from the date of taking possession up to one year and thereafter at the rate of 15% per annum till date of payment, after adjusting payment made towards interest, if any. The amount so calculated shall be satisfied jointly by the defendants No. 2 and 3. The amount shall be disbursed to the plaintiff by the defendant No. 1 i.e. District Collector, Aizawl." 8. The amount so calculated shall be satisfied jointly by the defendants No. 2 and 3. The amount shall be disbursed to the plaintiff by the defendant No. 1 i.e. District Collector, Aizawl." 8. Being aggrieved by the judgment and order dated 4.4.2017 passed by the learned Reference Court, the appellant preferred this appeal. 9. Mr. C. Lahamzavva, learned Senior Advocate submits that the learned Court below failed to take into consideration the potentiality of the land so acquired by the respondent from the appellant. The learned court below came to the finding that within the vicinity of the land there are Industrial Growth Center, Office of the BSNL, other residential houses, the land is well connected to the University and other Institutions but while enhancing the value of the land, the learned court below failed to appreciate the said facts in the proper perspective. 10. The appellant relied the judgment of this court in the case of North East Frontier Railway Vs Zosiami and others in RFA No. 24/2014 dated 18.6.2015 inasmuch as the land located at Sihhmui (subject matter in the RFA) which is outside the Aizawl Municipal Area, the market value of such land was fixed at Rs.200 per sq.ft but the learned court below failed to take into consideration about such enhancement. It is also submitted that the left over land of the appellant after the acquisition had become unusable and though it was very much pleaded therein before the learned Reference Court, no finding to that effect was given by the Court below nor the same was taken as the factor while deciding the enhancement value of the land. Such being the position, Mr.C.Lahamzavva, learned senior counsel submits that the court below fell in error in coming to a proper finding with respect to enhanced value of the land. In support of his contention the learned senior counsel relies on the decision reported in (2013) 14 SCC 406 (Digamber and others Vs State of Maharastra and others) and (2012) 7 SCC 595 (Sabhia Mohammed Yusuf Abdul Hamid Mulla (dead) by LRS and others Vs. Special Land Acquisition Officer and others) 11. In support of his contention the learned senior counsel relies on the decision reported in (2013) 14 SCC 406 (Digamber and others Vs State of Maharastra and others) and (2012) 7 SCC 595 (Sabhia Mohammed Yusuf Abdul Hamid Mulla (dead) by LRS and others Vs. Special Land Acquisition Officer and others) 11. The learned counsel for the respondent submits that the Court below considered the potentiality of the land to its permissible limit and as such assessment of the value of land by the learned court below cannot be considered to be inappropriate on the basis of the materials available on record. Supporting the findings of the learned court below the learned counsel submit that there is no merit in this appeal and the same is liable to be dismissed. 12. Considered the submissions of the learned counsels. The submission of the learned Senior counsel with regard to the importance of the factor "potentiality" of a particular plot of land is a decisive factor to be considered while fixing the market value of a particular plot of land. In (2013) 14 SCC 406 (supra) the Hon’ble Apex Court discussed the necessary ingredients forming the potentiality of a particular plot of land which is reproduced herein below: "16.4. Further , it would be worthwhile to refer to the portion which is extracted from Atma Singh V. State of Haryana which paragraph is referred to at para 18 in Sabhia Mohammed Yusuf Abdul Hamid Mulla case which reads thus; (Atma Singh case, SCC p 572 para 5) . "For ascertaining the market value of the land, the potentiality of the acquired land should also be taken into consideration. Potentiality means capacity or possibility for changing or developing into state of actuality. It is well settled that market value of a property has to be determined having due regard to its existing condition with all its existing advantages and its potential possibility when led out in its most advantageous manner. The question whether a land has potential value or not, is primarily one of fact depending upon its conditions, situation, uses to which it is put or is reasonably capable of being put and proximity to residential, commercial or industrial areas or institutions. The existing amenities like water, electricity, possibility of their further extension, whether near about town is developing or has prospect of development have to be taken into consideration " 13. The existing amenities like water, electricity, possibility of their further extension, whether near about town is developing or has prospect of development have to be taken into consideration " 13. In (2012) 7 SCC 595 the Hon’ble Apex Court observed certain guidelines that the Land Acquisition Collector is required to keep in mind while fixing the market value of the acquired land which is reproduced herein below: "16 We have considered the respective arguments and carefully perused the record. It is settled law that while fixing the market value of the acquired land, the Land Acquisition Collector is required to keep in mind the following factors: (i) Existing geographical situation of the land (ii) Existing use of the land (iii) Already available advantages, like proximity to National or State Highway or road and / or developed area (iv) Market value of other land situated in the same locality/village/area or adjacent or very near the acquired land" 14. Keeping the aforesaid guidelines let me examine the findings of the learned Reference Court. While fixing the market value of the acquired land the geographical situation of the land, existing use of the land, already available advantages like proximity to any road or developed area and the market value of other land situated in the same locality or very near the acquired land are to be kept in mind. The learned court below while setting aside the award of the District Collector had on its own sought for various materials even by appointing commission, calling for the records from the official custody and finally gave its findings that the acquired land of the appellant had its potentiality for further growth and raised the value of the land to Rs 120 per sq.ft. from Rs.80 per sq.ft. fixed by the District Collector . The requisite ingredients forming the potentiality of the particular plot of land has been rightly appreciated by the learned court below. While doing so however, learned court below failed to consider one of the factors raised by the appellant before it. In fact it was pleaded by the appellant that after the acquisition, the remaining land of the appellant had become unusable. While doing so however, learned court below failed to consider one of the factors raised by the appellant before it. In fact it was pleaded by the appellant that after the acquisition, the remaining land of the appellant had become unusable. From the findings arrived at by the learned Court below, it can without any dispute be held that on the basis of the verification by official surveyor and in presence of the learned counsels for the parties to the appeal, the land of the appellant consists of concrete building rented out to Airtel Company and the same is having the basic amenities like Electricity, water supply connection etc. With such material piece of evidence on record a duty was cast upon the court below, at least to consider the factor with respect to the reduction in value of utility of the left over land after severance of the acquired portion of land. The said factor, in my considered opinion has its importance in assessment of the compensation in the land acquisition process so far the person affected by such acquisition of his land is concerned. 15. The learned counsel on behalf of the parties to the appeal sought for issuance of a commission by this Court to examine the fact of reduction in the value of utility of the remaining land of the appellant. However such exercises cannot be undertaken by this court inasmuch as the commission report forms the part of the record and a piece of evidence, though that piece of evidence alone cannot be considered for deciding a particular issue. The person aggrieved against a commission report has a right to cross examine the commissioner with regard to the mode of enquiry applied by him while furnishing the report. Keeping the aforesaid view, in my considered opinion it would be proper if the impugned judgment and award is set aside by this Court and remand the matter to the learned Reference Court to consider the aforesaid factor of reduction in the value of utility of the left over land after severance of the land so acquired of the appellant, by appointing a local commission. Thereafter the learned Court below shall pass the judgment and order afresh giving due weightage to the factor of potentiality already considered by the learned Court below. Accordingly, the judgment and order dated 4.4.2017 passed by the learned Addl. Thereafter the learned Court below shall pass the judgment and order afresh giving due weightage to the factor of potentiality already considered by the learned Court below. Accordingly, the judgment and order dated 4.4.2017 passed by the learned Addl. District Judge, Aizawl Judicial District, Aizawl passed in L.A. Case No. 20/2014 is hereby set aside. 16. Considering the nature of the matter, let the whole exercise be undertaken by the learned court below putting an endeavour to complete within a period of three months from the date of appearance of the parties which is fixed on 10.4.2018. 17. Accordingly this appeal is disposed of. Registry to send back the LCR.