Deputy Chief Engineer vs Swapna Biswas And Ors

Heard Mr. A. De, learned Panel counsel appearing on behalf of NF Railway, the appellant herein. Also heard Mr. DK Das Choudhury, learned counsel appearing for the claimant-respondents.

The impugnment, is the judgment and award dated 03.09.2016 passed by the learned LA Judge, Court No. 1, Gomati Judicial District, Udaipur in case No. Misc. (L.A.) 161 of 2013 [ Sri Birendra Chandra Biswas, being expired is represented by his legal heirs Smt. Swapna Biswas and others vs. The Land Acquisition Collector and another] wherein the award was made by the learned L.A. Judge at Rs. 10,50,000/- - 40% i.e. Rs. 6,30,000/- per kani.

Briefly stated, the land in question, was acquired by the LA Collector vide notification No. F.9(4)-REV/ACQ/IX/2010 dated 28.01.2010 under Section 17 of the L.A. Act, 1894 for the purpose of construction of Agartala to Sabroom Railway Line. The compensation of the acquired land was assessed by the L.A. Collector @ Rs. 70,000/- per kani and total amount of Rs. 1,58,270/- was awarded to the claimant. Being dis-satisfied, the claimant has prayed for reference and on reference the matter was decided by the learned LA Judge, Gomati District, Udaipur by awarding the aforestated market price. During proceeding, the claimant had relied upon as many as 5 sale deeds (Exhibits 1,2,3,4 and 5). The L.A. Collector and the appellant- N.F. Railway by filing their counter statements have stated that none of the sale instances, as relied upon by the claimants, are situated in close proximity of the acquired land. As such, they prayed before the learned L.A. Judge to maintain the award as determined by the L.A. Collector, but, the learned L.A. Judge has taken into consideration of the market price of the land @ Rs. 10,50,000/- - 40%, i.e., Rs. 6,30,000/-per kani. The said judgment of the learned L.A. Judge is under challenge before this court.

Mr. A. De, learned panel counsel appearing for the requiring department has drawn my attention to paragraph 9 of the judgment of the learned L.A. Judge, which is reproduced as under:

"9) Issue No.2 - In the deed no.1-1316 dated 25.6.2008 (Exhibit-1) an area of 0.11 acre of land of class- Nal from plot no. 272 (0.10 acre) and from plot no.155 (0.01 acre) was sold at Rs.2,20,000/- i.e. Rs. 8 lakhs per kani. In deed no.1-1646 dated 23.09.2009 (Exhibit-2), an area of 0.04 acre from plot no.2470/3950 of class nal was sold at Rs.1,05,000/- i.e. @ Rs.10,50,000/- per kani. In deed no.1-153 dated 21.01.2009 (Exhibit-3), an area of 0.10 acre of class Nal of plot no.2647/4327 was sold at Rs.2,50,000/- i.e. @ Rs.10 lakhs per kani. In deed no.1-1580 dated 30.9.2009 (Exhibit-4) an area of 0.21 acre of class Bastu (tilla) & Nal (Doba) of plot nos. 994/4333 and 993 (0.14 acre of Bastu -tilla and of 0.07 acre of Doba) was sold at Rs.5,07,500/- i.e. @ Rs.9,66,000/- per kani. All the lands are of Khilpara mouja, but on perusal of the map, the plots under sale instances i.e. of Ext. 1 to Ext.4 are not mentioned in the said part map (Exbt.5), only the acquired plot is reflected. Thus, this map appears to be of not much beneficial for the claimant in this regard, rather, another thing can be inferred that the acquired plot is far away from the lands under said sale instances, otherwise, the plots under sale instances would be mentioned in the said part maps. From these deeds under Ext.1 to 3, it can be presumed that just before the acquisition, at least some lands of Nal class in Khilpara mouja was sold at Rs.10,00,000/- per kani or abit higher than that. From the side of Opp. parties no sale deed was proved on record to justify their assessment. As there are no sale instances from the side of Opp. parties, to make assessment, only the sale instances at hand which are proved from the side of claimant shall have to be relied upon, subject to further deduction, if any, from the sale price of those lands".

Mr. De, learned counsel by way of referring this paragraph submitted that it is the finding of the learned L.A. Judge that the map, as relied upon and produced by the claimants, does not indicate the plot numbers containing in the deeds, the claimants have produced before the court under reference and the learned L.A. Judge himself has further held that the map appears to be of not much beneficial for the claimant in this regard rather another thing can be inferred that the acquired plot is far away from the lands under the sale instances, otherwise the plots under the sale instances would be mentioned in the said part maps. Mr. De, learned counsel has further submitted that only on the basis of presumption, the learned L.A. Judge has assessed the market price of the acquired land @ Rs. 10,50,000/- per kani, and, after applying the principles laid down in the case of Subh Ram and others vs. State of Haryana & another reported in (2010) 1 SCC 444, has deducted 40%, and, thus it was finally assessed at Rs. 6,30,000/- per kani.

This court may reproduce the relevant paragraph of the case of Subh Ram (supra), which is as under:

"13. Therefore, in the hypothetical layout method of determination of market value, as a first step, the areas that will be used up for roads, drains, parks/playgrounds and community areas, will have to be excluded from the total extent of the acquired land. The standard deduction in this behalf is onethird (33%).

But merely deducting the areas required for roads, drains, parks and community areas, will not convert a large tract of agricultural of undeveloped land into a developed residential layout. For that, considerable financial outlay has to be made. The land will have to be levelled. The land will have to be converted from agricultural use to non-agricultural residential use by paying necessary fees/fine to the Revenue/development authorities. Then the roads will have to be asphalted or concreted. Drains will have to be dug and lined with reinforced cement concrete or stone, for drainage of rainwater. Electricity, water, and sewage lines will have to be laid. Deposits will have to be made to the authorities dealing with electricity, water and sewage removal. The development will also involve the service of surveyors, engineers and developers. All these involve considerable expenditure. Further, as there will be a time gap between the expenditure for development and the actual sale of plots, the cost of development will also have an element of interest on investment. The developer who undertakes the development and invests the monies for development would also expect a reasonable profit when the plots are sold. All these expenditure and factors are standardized into another one-third (33%) deduction towards expenses of development.

Thus, if the valuation of a large extent of agricultural or undeveloped land is to be based on the sale price of a small developed plot in a private layout, then the standard deductions should be one-third (for roads, etc.) plus one-third (for expenditure of development), in all two-thirds (or 67%), as "development cost" from the value of small plot. The percentage of deduction may however vary between 20% to 75% depending on several circumstances (see Lal Chand v. Union of India, paras 8 and 9 for illustrations of such circumstances).

Therefore, when deduction is made from the value of a small residential plot towards the development cost, to arrive at the value of a large tract of agricultural or undeveloped land with development potential, the deduction has nothing to do with the purpose for which the land is acquired. The deduction is with reference to the price of the small residential plot, to work back the value of the large tract of undeveloped land. On the other hand, where the value of acquired agricultural land is determined with reference to the sale price of a neighbouring agricultural land, no deduction need be made towards "development cost".

Mr. Das Choudhury, learned counsel appearing for the claimant-respondents has submitted that the L.A. Act is beneficial legislation to determine the market price and some guess work is allowed. So, according to him, the presumption as drawn by the learned L.A. Judge should not be termed as arbitrary and unreasonable.

Considering the aforesaid submission of the learned counsel appearing for the parties to the lis, I have perused the judgment and materials on record. I have meticulously considered the principle for determination, as applied by the learned L.A. Judge and the principle laid down by the apex court in Subh Ram (supra).

It is clear from the record that the site map in and around the acquired land, as relied upon by the claimants, does not support the claim of the claimants that the deeds which they relied upon are in close proximity of the acquired land. This fact is also supported by the learned L.A. Judge in his findings while deciding the issue no. (ii).

At this juncture, I have noticed the assessment note prepared by the L.A. Collector. During the course of hearing before the L.A. Collector, as many as ten deeds were taken into consideration for determination of the market price of the acquired land. The said assessment note on being introduced in course of evidence before the learned L.A. Judge was marked as Exhibit-'A'. I find the observation of the L.A. Collector which is as under:

"On scrutiny of the above sale deeds, it is found that, land of deed no. 1,2,3,4,6,7,8,9,10,A and B are situated far away from the proposed land to be acquired and so it would not be highly considerable towards fixing rate of land proposed to be acquired. Deed No. 5 is situated at a distance of 48 mt. (approx) straight distance from the proposed alignment".

Thus, the deed at serial No. 5 i.e. sale deed no. 1-1829 fetches the value of Rs. 1,88,235/- per kani. It is noticed that the date of registration of the said notice is 17.11.2009 and the land in question in the present appeal was acquired vide notification dated 28.01.2010. So, the execution of the said deed appears to be very close to the date of acquisition of land in question.

In my opinion, due to the proposed construction of the railway through the area, naturally, the value of the market price of the land had been increasing day by day, but, any award should not be seemed to be a bonanza to any of the land looser. Undoubtedly, Land Acquisition Act is a beneficial legislation and land owners are the ultimate looser. However, the court should definitely try to make a balance. Government money is also public money. Burden should not unreasonably be shouldered upon the public exchequer. Simultaneously, the interest of the land looser is also to be looked into. In my opinion, it is the duty of the claimants to produce some cogent evidence to justify their claim.

In the instant case, it is the finding of the learned L.A. Judge that the sale instances, which were produced by the claimant, did not support their claim. On the other hand, the L.A. Collector after verification of the sale instances and the land in question has detected one sale deed No. 1-1829, which is situated at a distance of only 48 mt., which fetches the value of Rs. 1,88,235/- per kani and, was executed on 17.11.2009, i.e., just prior to the process of present acquisition.

After considering all aspects, without interfering with the market value of the land, as assessed by the learned L.A. Judge, in my opinion, substantial justice would be rendered if 60% deduction is made instead of 40% for the development of the land in consonance with the principle drawn in the case of Subh Ram (supra). Accordingly, the judgment and award dated 03.09.2016 is interfered with to the extent that the land in question i.e. value of the acquired land is determined at Rs. 10,50,000/- per kani - 60% = Rs. 4,20,000/- per kani.

In the result, the claimant-respondents are entitled to get compensation @ Rs. 4,20,000/- per kani along with all other statutory benefits as held by the learned L.A. Judge.

With the aforesaid observation and direction, the instant appeal stands partly allowed and thus disposed of.

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