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2022 DIGILAW 165 (TRI)

Benu Bhusan Das v. Land Acquisition Collector

2022-03-31

S.G.CHATTOPADHYAY

body2022
JUDGMENT 1. Heard Mr. K. K. Pal, learned counsel appearing for the appellant. None appeared for the respondents despite service of notice. 2. This is an appeal under Section 54 of the Land Acquisition Act from the judgment and award dated 28.09.2018 delivered in Misc.(LA) 19 of 2015 by the Land Acquisition Judge (Court No.2), West Tripura, Agartala. 3. The facts are mostly admitted in as much as the respondents did not prefer any appeal nor have they filed any cross-objection. Moreover they did not appear despite receiving notice. 4. In terms of notification No.F.9(4)-REV/ACQ/XIV/07 dated 28th April, 2007 issued under Section 4 of the Land Acquisition Act, 1894, the land of the appellant measuring 0.0170 acres comprised in Plot No.9419/11003(P) in Madhupur mouza and recorded in Khatian No. 4321 was acquired for construction/up-gradation of link road from NH-44 (Amtali police station to B.R. Ambedkar Hospital at Hapania). The land according to the records falls in the Tilla class. The L.A Collector after hearing the claim of the appellant awarded a sum of Rs.30,897/- as the compensation inclusive of other components at the price of Rs.5,30,000/-(rupees five lakhs thirty thousand) per kani. 5. Being aggrieved by the said determination, the appellant pressed for reference under Section 18 of the Land Acquisition Act for determination of fair price of the acquired land. The said reference being Misc.(LA) No. 19 of 2015 was answered by the judgment and award dated 28.09.2018 which is under challenge in this appeal. 6. Mr. K. K. Pal, learned counsel appearing for the appellant has submitted that the reasons given for discarding the sale exemplars as produced by the appellant-referring claimant cannot be accepted as it would be apparent from those sale instances that the land rate at the area is much higher than the rate awarded by the learned L.A. Judge. The learned L. A. Judge on appreciation of evidence led by the appellant has observed as under: '13. For determination of the market value of the acquired land, the referring claimant in the instant proceeding has relied upon the following comparable sale transactions: Sl. No. Description of the documents Area of land Value Rate per kani 1. Sale deed No. 7144 dated 08.08.2001 3 ganda 3 kara 1 kranta Rs.30,000/- Rs.1,55,520/- 2. Sale deed No. 7147 dated 08.08.2001 1 ganda Rs.10,000/- Rs.2,00,000/- 3. No. Description of the documents Area of land Value Rate per kani 1. Sale deed No. 7144 dated 08.08.2001 3 ganda 3 kara 1 kranta Rs.30,000/- Rs.1,55,520/- 2. Sale deed No. 7147 dated 08.08.2001 1 ganda Rs.10,000/- Rs.2,00,000/- 3. Sale deed No. 3368 dated 04.07.2008 1 kranta 9 dhur Rs.1,00,000/- Rs.1,64,50,560/-' [7] Thereafter the learned L.A Judge has observed as under: '15. Now, let me assess whether the market value of the acquired land assessed by the L.A. Collector, West Tripura, Agartala was just and adequate. For the purpose of Upgradation of Link Road from N.H.44 (Amtali P.S to Dr. B. R. Ambedkar Hospital, Hapania) situated at Mouza-Madhuban, sheet no.5/P, under Bishalgarh Sub-Division, West Tripura District the Government acquired lands in Mouja Madhuban, sheet No.5/P. The present land along with other lands were also acquired in the year 2007 by a common Notification dated 25.06.2007 under Section 4 of the L. A. Act. In course of argument the learned counsel appearing for and on behalf of the referring claimant has referred a decision of our Own High Court which was passed in connection with case No. LA App. 08 of 2013 and LA App 09 of 2013. On perusal of the same I find that the said judgment relates to the land of Badharghat mouja but in the instant case acquired land falls under Madhuban Mouza so the said decision cannot be considered as covered judgment in the instant case for just decision of the case. The acquired land of this case is Tilla class of land. The sale deeds No. Sale deed No.7144 was executed on 08.08.2001 and Sale deed No. 7147 was executed on 08.08.2001. The aforesaid sale deeds serial No.1 and 2 which were relied upon by the referring claimant were executed well ahead of notification of acquisition. The present acquired land is situated nearby Agartala-Bishalgarh road and it has got high potential value as far as its positional value is concerned since there are important institutions/ establishments like Tripura Jute Mill, Dr. B. R. Ambedkar Hospital, Women Polytechnic etc. nearby the acquired land. It is the admitted position that the land in Tripura is increasing rapidly. Considering all the factors in mind, I feel that the rate as assessed by the L.A. Collector is low in comparison with the prevailing market rate at the relevant time. B. R. Ambedkar Hospital, Women Polytechnic etc. nearby the acquired land. It is the admitted position that the land in Tripura is increasing rapidly. Considering all the factors in mind, I feel that the rate as assessed by the L.A. Collector is low in comparison with the prevailing market rate at the relevant time. It appears to me that the rate of acquired land at the rate of Rs.5,30,000/- per kani was in the lower side which ought to have been at the rate of Rs.12,00,000/- per kani and that would have certainly compensated the referring claimant adequately. Accordingly, I do hereby opine that the referring claimant should get compensation of Rs.12,00,000/- per kani for the acquired Tila class of land covered in plot No. 9419/11013/p, situated at mouja-Madhupur. Accordingly Issue No. (A) and (B) are decided in favour of referring claimant.' 8. Mr. Pal, learned counsel of the appellant contended that the facts as asserted in the claim statement were neither denied nor the respondents could invest a single word to traverse the said statements or to lay down their version in contradiction of the claim of the appellant-referring claimant. Counsel contended that the sale instances submitted by the appellant were of contemporaneous transaction and those transactions involved much higher rate, even though the class of land differs. 9. It is therefore, contended by the counsel of the appellant that the learned L. A. Judge came to an erroneous conclusion ignoring the evidence led by the appellant and the sale instances produced by him. Counsel therefore, urged for raising the amount of compensation payable to the appellant by setting aside the award passed by the learned L.A Judge. 10. The respondents filed counter statement before the learned L. A. Judge contending that the L. A Collector assessed the compensation after consideration of all relevant factors as well as documents submitted by the appellant before the L.A Collector. It was further contended by the respondents in their counter statement that the surveyor engaged by the L.A. Collector collected comparable sale instances within the close vicinity of the acquired land and on the basis of those sale instances and other relevant factors, the price of the land was determined by the L. A Collector and paid to the appellant. The respondents also asserted as under: '5. The respondents also asserted as under: '5. That, the acquired land was Tilla class of land and situated far from the road and at the time of acquisition, the land had no potential value as claimed by the referring claimant for enhancement of compensation. There were no amenities or modern facilities like electricity, Water supply, Telephone, Post Office, market, transportation, school Hospital or Government offices. So, the assessment done by the Opp. Party No.2 i.e., the Land Acquisition Collector, West Tripura, Agartala was reasonable which was done considering the market value of the land at the relevant period and hence, the claim of the referring claimant for enhancement of the amount of compensation is not tenable in the eye of law and the same is liable to be rejected by this Learned Court.' As noted above, the respondents did not appear before this Court despite receiving notice. 11. Having regard to the rival contentions as raised by the learned counsel for the purpose, this Court has thoroughly scrutinised the records as considered by the learned L. A. Judge. For the purpose of reference, the sale deeds which were considered by the L. A Collector are listed in a table in his assessment note dated 27.11.2007 as well as in the counter statement of the respondents. The table is extracted hereinunder: Sl. No. Mouja Plot No. Classification of land Area in acre Deed No. and date Total value of land Value of land per kani Distance from the Land Proposed to be Acquired. 1 2 3 4 5 6 7 8 9 1. Madhuban Sheet No.5 4851 Bhiti 0.04 1-545 13.1.06 Rs.50,000/- Rs.5,00,000/- 920 ft. 2. -do- 4687/9512 Bastu (Tilla) 0.04 1-823 28.8.06 RS.1,00,000/- Rs.10,00,000/- 340 ft. 3. -do- 4775 Bastu (Tilla) 0.02 1-815 26.8.06 Rs.55,000/- Rs.11,00,000/- 1335 ft. 4. -do- 4629 Bastu (Tilla) Tilla, Tilla 0.06 1-3639 26.3.04 Rs.30,000/- Rs.2,00,000/- 25 ft. 5. -do- 4850/4851 Bhiti 0.048 1-548 14.2.07 Rs.1,59,500/- Rs.13,29,166/- 910 ft. [12] The moot point which arises for consideration in the present appeal is whether the compensation awarded to the appellant by the learned L. A. Judge calls for any interference in appeal. [13] Undisputedly, the acquired land falls in the Bastu (Tilla) class on which the appellant was carrying out his business by setting up a shop thereon. [12] The moot point which arises for consideration in the present appeal is whether the compensation awarded to the appellant by the learned L. A. Judge calls for any interference in appeal. [13] Undisputedly, the acquired land falls in the Bastu (Tilla) class on which the appellant was carrying out his business by setting up a shop thereon. It was admitted by the respondents in their counter statement before the learned L. A. Judge that the acquired land was situated in a developed area and there were many other advantages attached to the land in terms of its location particularly, in terms of its proximity to the National Highway. In this regard the respondents in their counter statement asserted as under: '***** During the course of acquisition, myself along with the Land Acquisition officer visited the land personally and it was found that the entire land in acquisition starts from Agartala-Bishalgarh road & proceeded initially towards western direction over the acquired land of Badharghat sheet No.6(1) & 692/p and thereafter over the land of present project under Madhuban sheet No.5. The erstwhile Dr. B. R. Ambedkar Hospital (presently GENET Hospital) is located a bit west and the cool storage is in the adjacent east from the proposed acquired land. It is also seen that the entire area under acquisition is developed one and potential from the commercial point of view for existence of the newly setup of GENET Medical College & Hospital as well as Hapania Market, ONGC Complex, Tripura Jute Mills Ltd. & Amtali P.S are also located within 1/2 KM (Approx) from the proposed acquired land. All sorts' amenities like trade, transport & communication etc. are readily available in this area. It is also seen that the proposed land is also suitable for construction of homestead also. The locality is also found to be densely populated being comes under the jurisdiction of the Agartala Municipal area.**************' 14. Relying on the judgment dated 27.04.2016 passed by this Court in L.A. Appeal No.8 of 2013 (Sri Tusharbindu Chakraborty v. The Executive Engineer and others) counsel of the appellant contended that in the case of Tusharbindu Chakraborty (supra) compensation for acquisition of similar nature of land in the same locality was raised to Rs.31,50,000/- per kani by this Court with all other statutory benefits and interest in accordance with law. Counsel contends that on the ground of parity, the appellant is entitled to similar amount of compensation for acquisition of his land. 15. It would appear from the judgment and award of the learned L.A Judge that in the course of trial, the learned L. A. Judge framed two issues which were as under: (i) Is the market value determined by the L. A. Collector inadequate and improper? (ii) Is the referring claimant entitled to enhancement of the compensation, if so to what extent? 16. Appellant-referring claimant examined himself as PW-1 and proved his purchase deed and a sale instances which were taken into evidence and marked as exhibits. As noted, the referring claimant i.e. the appellant also relied on the judgment of this Court in the case of Tusharbindu Chakraborty (supra) 17. Having considered the sale instances, location and amenities attached to the acquired land, learned L.A Judge felt that Rs.5,30,000/- per kani awarded by the L. A. Collector was inadequate and, accordingly, the learned L.A Judge raised the compensation to Rs.12,00,000/- per kani along with other statutory benefits. 18. In their counter statement submitted before the L.A Judge, the respondents admitted that Bastu (Tilla) deserves higher rate than any other class of land in view of the investment involved therein. 19. From the sale exemplars compared by the learned L. A. Judge it would appear that in one of the transactions, price of the land of the class of Bastu (Tilla) was Rs.10,00,000/- per kani within the proximity of the acquired land and in another transaction price of land of a Bhiti class of land was determined at Rs.13,29,166/- per kani. 20. In the case of Mehrawal Khewaji Trust (Registered), Faridkot and Ors. v. State of Punjab and Ors.: reported in (2012) 5 SCC 432 : AIR 2012 SC 2721 the Apex Court held that when the land is being compulsorily taken way from a person by acquisition, he is entitled to the highest value which similar land in the locality is shown to have fetched in a bona fide transaction entered into between a willing purchaser and a willing seller near about the time of acquisition. The Supreme Court observed as under: '17. The Supreme Court observed as under: '17. It is clear that when there are several exemplars with reference to similar lands, it is the general rule that the highest of the exemplars, if it is satisfied that it is a bona fide transaction, has to be considered and accepted. When the land is being compulsorily taken away from a person, he is entitled to the highest value which similar land in the locality is shown to have fetched in a bona fide transaction entered into between a willing purchaser and a willing seller near about the time of the acquisition. In our view, it seems to be only fair that where sale deeds pertaining to different transactions are relied on behalf of the Government, the transaction representing the highest value should be preferred to the rest unless there are strong circumstances justifying a different course. It is not desirable to take an average of various sale deeds placed before the authority/court for fixing fair compensation.' 21. Relying on the decision of the Apex Court in Mehrawal Khewaji Trust (supra), this court in Nanda Rani Debnath v. In-Charge, HR-ER, ONGC Ltd. reported in (2019) 1 TLR 194 has held as under: '16. The phrase that has been used in Mehrawal Khewaji Trust (supra) 'the similar lands', has to be critically dwelled upon for having an accurate insight to the legal proposition. What makes two pieces of land similar to each other? According to this court, its location, the index of development, the class of land and the other advantages attached to the land. These four parameters if considered cumulatively allows a prudent person to come to a conclusion that whether two pieces of land, through differently located is liable to be treated as similar.' 22. In the instant case, the appellant could not establish that the land involved in the sale instances produced by him were comparable to the acquired land in terms of their location, the index of development, the class of land and the other advantages attached to such land. The appellant could not also substantiate his claim that the land involved in the case of Tusharbindu Chakraborty (supra) is similar to his acquired land. Evidently, in one of the sale instances compared by the L.A. Collector, a Bhiti class of land was sold out at the price of Rs.13,29,166/- per kani within the proximity of the acquired land. The appellant could not also substantiate his claim that the land involved in the case of Tusharbindu Chakraborty (supra) is similar to his acquired land. Evidently, in one of the sale instances compared by the L.A. Collector, a Bhiti class of land was sold out at the price of Rs.13,29,166/- per kani within the proximity of the acquired land. Admittedly, the said land was similar to the acquired land in terms of its location, the index of development and other advantages attached to the land. Only the class of the land was different because acquired land was Bastu(tilla) class of land and the said sale exemplar involved Bhiti class of land. As noted, the respondents in their counter statement asserted that Bastu (Tilla) deserves higher rate than any other class of land. Therefore, the appellant would be entitled to higher value for his acquired land. 23. In view of what has been discussed above, this Court is of the view that Rs.14,00,000/-(rupees fourteen lakhs) per kani shall be the fair amount of compensation for acquisition of the land of the appellant. 24. The total compensation payable to the appellant shall be determined on the basis of the said rate following the prescription as provided under Section 23 of the LA Act, meaning payment of additional compensation at the rate of 12% under Section 23(1A) of the LA Act, the solatium at the rate of 30% under Section 23(2) of the LA Act. The additional compensation, solatium and compensation for land shall carry interest in terms of Section 34 of the LA Act. The said amount shall be paid by respondent No.2 within three months from the date of the decree(award). 25. In the result, this appeal stands partly allowed. Draw the decree(award) and thereafter send down the records.