Deputy Chief Engineer vs Nepal Chandra Shil And Ors

[1] For a public purpose, namely, construction of railway line, acquisition proceedings under the provisions of Land Acquisition Act, 1894 (referred to as the Act), were commenced by the acquirer i.e. the State, Government of Tripura.

[2] Notification under Section-4 of the Act was issued on 28.01.2010 and the Collector vide his award dated 28th April, 2010, determined the market value of the acquired land classification wise, ranging from Rs.70,000/- to Rs.12,00,000/- per kani. Insofar as, the subject matter of the present appeal is concerned, classification being „Nal‟, the value of the land was determined at Rs.1,10,000/- per kani.

[3] The claimants being owners of Plot Nos. 1699 and 1698(P), challenged the award on the ground that the Collector, Land Acquisition, undervalued the property and as such, did not determine the fair market value of the acquired land.

[4] The court below, after appreciating the evidence led by the parties, re-determined the market value of the acquired land at Rs.9,00,000/- per kani. The beneficiary assailed the said award dated 16.09.2015 passed by the Land Acquisition Judge, Gomati District, Udaipur, in Misc (L.A.) 142 of 2013, titled as Shri Nepal Shil v. The L.A. Collector & Others.

[5] It is a settled principle of law that the onus to establish the market value, other than the one which stands determined by the Collector is upon the claimants.

[6] In the pleadings, the acquirer/beneficiary has seriously disputed the averments made by the claimants with regard to the market value, other than the one which stands determined by the Collector. Record reveals that only one witness was examined in court by both the parties. It is only the claimant, namely, Sri Nepal Ch. Shil, PW-1, who stepped into the witness box, who in his evidence by way of affidavit, claimed compensation at Rs.15,00,000/- per kani. In support thereof, the claimant has deposed as under:

"5. That the awarded compensation of the acquired land is so scanty, that will not used in fruitful purpose of the petitioner, nor the petitioner will get any quantity of land in the same area by the said awarded amount as the market value of the Khilpara Mouja have been increasing hurriedly due to the construction of railway line and canal, as such present market value of acquired land is more that Rs.15,00,000/- per kani.

That the acquired land was fertile alluvial and residential class of land and it was potentially high valued as because the acquired land is situated to the adjacent east side of Udaipur Kakraban road, Khilpara Market, Jamjuri Market is situated to the adjacent western side of acquired land, Ramesh H.S. School, Khilpara H. S. School are situated ½ K. M, Tripura Sundari Hospital, Radhakishorepur Police Station, Udaipur Market are situated within distance of 3 KM from the acquired land and other Government and Semi Government officers are situated within 2 KM of the acquired land. The acquired land of the petitioner is situated within distance of 1 KM of Udaipur Municipality area. The importance to the potential value of the acquired land has not been given at all to the petitioner by the L.A. Collector.

That the Ld. L.A. Collector has acquired land of the petitioner by Notification No. F.(04)-REV/ACQ/IX/2010 dated 06.02.2010 and awarded compensation of Rs.70,000/- per kani and acquired some same class of land from Khilpara Mouja adjacent to the acquired land of the petitioners and awarded compensation Rs.8,00,000/- per kani. Such action of the L.A. Collector is one eyed arbitrary, fanciful, illegal, motivated unconstitutional and unhealthy. The referring claimant-petitioner therefore prays for justice.

That on the following documents:

(a) Copy of the registered sale deed No. 1-1580 dated 21.10.2009 of Sub-Registrar, Udaipur, Gomati Tripura.

(b) Copy of the registered sale deed No. 1-1646 dated 20.10.2009 of Sub-Registrar, Udaipur, Gomati Tripura.

(c) Copy of the registered sale deed No. 1-153 dated 22.01.2009 of Sub-Registrar, Udaipur, Gomati Tripura.

(d) Copy of the Map of Khilpara Mouja." [Emphasis supplied]

[7] The cross-examination part of this witness is also reproduced hereunder:

"FORM FOR RECORDING DEPOSITION

In the Court of : L. A. Judge, Gomati District, Udaipur.

Present : Shri A. Pal. Case No. : Case No. Misc (LA) 142 of 2013

Deposition of witness No. PW-1 for the petitioner recorded on oath or solemn affirmation under provision of Oaths Act, 1969(Act. 44 of 1969) on this 16th day of April, 2015, in the language interpreted by name Sri Nepal Ch. Shil, Aged about 54 years. Son of Lt. Bilash Ch. Shil of Khilpara, Police Station, R.K. Pur, District-Gomati Tripura, Occupation-Cultivation, Literate-Yes.

I have submitted examination in chief on affidavit. I have also produced photo copy of sale deed No. 1-1580, 1-1646 and map of Khilpara mouja on being compared with the certified copy and on admission of Ld. G. P. the same are marked as Exbt.1 series.

Cross-examination on behalf of O.P. No. 1

It is not a fact that adequate compensation is given and I am not entitled to get enhanced compensation. It is not a fact that deed land not nearer to the acquired land.

Cross-examination on behalf of O.P. No. 2

It is not a fact that adequate compensation is given and I am not entitled to get enhanced compensation. It is not a fact that deed land not nearer to the acquired land.

As dictated."

[8] Perusal of the aforesaid testimony only reveals that the certified copies of the sale deeds (Exbt.1 series), were placed on record. But the deponent does not state as to how the said exemplar sale deeds, three in number, have any bearing on the outcome of the case. The sale deeds pertain to the year 2009 whereas, the acquisition commenced on 28.01.2010.

[9] Nowhere there is any comparison, much less whisper or indication, as to whether the said sale deeds are of the same area/vicinity. Also there is nothing on record to establish that the said sale deeds are in any manner comparable with the acquired land, in terms of its potential, use, nature and classification, etc.

[10] The Collector, having come to the conclusion that the exemplar sale deeds pertain to the land which is "not nearer" to the acquired land, there was no occasion for the court below to have enhanced the market value.

[11] It is seen that compensation stands enhanced for the reason that the Collector, vide same award had determined the market value with respect to the same classification of land @ Rs.10,00,000/- per kani. But then, there is no evidence on record to establish that this land was just adjacent / adjoining to the land in question and having the same potential with regard to its use and proximity from the market/general conveyances available in the area.

[12] With regard to the very same category/classification of land, there can be variation in price. All would depend upon the location of the land and the potential use to which it can be put. The land of the same category would be fetching higher price if it is proximate to the highway, the commercial center or habitation, whereas, the land of the same category may be of lesser value, if it is in the interior, having no access or certain disadvantages attached to it. One cannot forget that in the same Revenue estate, large tract of land was acquired for construction of railway tracks.

[13] On this aspect, there is no evidence on record. As such, the findings returned by the court below in re-determining market value and enhancing the compensation is illegal with the approach adopted to be faulty.

[14] It is also a settled principle of law that a hypothetical purchaser would not offer the same market value for lands with such a situation as lands which are nearer to the developed area and abut on a road or are nearer to a road. The development of lands which are nearer to the developed area and nearer to the road can reasonably be expected to take place much earlier. Only after such lands are developed and construction comes up, the development would proceed further in the interior.

It is, therefore, understandable that the land in the interior would fetch much smaller price as compared to the lands situated nearer to the developed locality. More so as all these factors are incapable of precise or scientific evaluation. The valuer has to indulge in some amount of guess work and make the best of the situation. [Chimanlal Hargovinddas (supra)]

[15] In sum, in estimating the market value of the land all of the capabilities of the land and all its legitimate purposes to which it may be applied or for which it may be adapted, are to be considered and not merely the condition it is in and the use to which it is at the time applied by the owner. The proper principle is to ascertain the market value of the land taking into consideration the special value which ought to be attached to the special advantage possessed by the land; namely, its proximity to developed urbanised areas. The value of the potentiality has to be determined on such materials as are available and without indulgence in fits of the imagination. No benefit of development pursuant to and after acquisition can be taken into consideration. [Suresh Kumar v. Town Improvement Trust, Bhopal, (1989) 2 SCC 329 (2 Judge Bench); Also: Bhagwathula Samanna & others v. Special Tahsildar & Land Acquisition Officer, Visakhapatnam Municipality, Visakhapatnam, (1991) 4 SCC 506 (para-7 & 13)(2 Judge Bench)]

[16] It is also a settled principle of law that when no sales of comparable land were available where large chunks of land had been sold, even land transactions in respect of smaller extent of land could be taken note of as indicating the price that it may fetch in respect of large tracts of land by making appropriate deductions such as for development of the land by providing enough space for roads, sewers, drains, expenses involved in formation of a lay out lump sum payment as also the waiting period required for selling the sites that would be formed. [Land Acquisition Officer Revenue Divisional Officer, Chittor v. L. Kamalamma (Smt.) Dead by L.R.s & others: K. Krishnamachari & others, (1998) 2 SCC 385 (2 Judge Bench)]

[17] It is also a settled principle of law that in determination of the hypothetical market value of the acquired land, the Land Acquisition Officer is guided by the provisions of Section 23 and 24 of the Act and there are various methods and procedures for determining such market value. Contemporaneous sale transaction being the most authentic and favourable factor, undoubtedly has to be on the basis of such sale transactions which are found to be genuine. Also report of the Government approved valuer, who is an expert in the field, is one such factor which cannot be discounted out-rightly. [Nelson Fernandes & others v. Special Land Acquisition Officer, South Goa & others, (2007) 9 SCC 447 (2 Judge Bench)]

[18] It is also a settled principle of law that Section 51 A of the L.A. Act may be read literally and having regard to the ordinary meaning which can be attributed to the term 'acceptance of evidence', relating to transaction evidenced by a sale deed, its admissibility in evidence would be beyond any question. For bringing a documentary evidence on the record, the same must not only be admissible but the contents thereof must be proved in accordance with law. But when the statute enables the court to accept a sale deed on the records evidencing a transaction, nothing further is required to be done. Even the vendor or vendee thereof is not required to examine themselves for proving the contents thereof. This, however, would not mean that the contents of the transaction as evidenced by the registered sale deed would automatically be accepted. The legislature advisedly has used the word 'may'. A discretion, therefore, has been conferred upon a court to be exercised judicially, i.e., upon taking into consideration the relevant factors. [Cement Corpn. of India Ltd. v. Purya & others, (2004) 8 SCC 270 (Constitution Bench); Also: Ranvir Singh & another v. Union of India, (2005) 12 SCC 59 (2 Judge Bench)]

[19] In view of above, the impugned award dated 16.09.2015 passed by the Land Acquisition Judge, Gomati District, Udaipur, in Misc (L.A.) 142 of 2013, titled as Shri Nepal Shil v. The L.A. Collector & Others, is quashed and set aside.

[20] Accordingly, the present appeal stands disposed of. After drawing the award, LCRs be sent down. Pending application(s) if any, also stands disposed of.