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Judgment
[1] Heard Mr. S. Bhattacharjee, learned counsel appearing for the petitioner as well as Mr. B. N. Majumder, learned counsel appearing for the respondent No.3. None appears for the respondents No. 1 and 2 when the matter is called out. Even no mention has been made in respect of their non-participation.
[2] This is a petition filed under Article 227 of the Constitution of India from the judgment and award dated 03.07.2017 passed by the District Judge, South Tripura, Udaipur in Civil Misc. 23 of 2013. That proceeding was instituted under Section 16(3) of the Indian Telegraph Act, 1885 for determining the sufficiency of damage as assessed under Section 10(d) by the North East Transmission Co. Ltd., the petitioner herein. The Respondent No.1 had on the same subject matter appeared before this court by filing a writ petition being WP(C) 130 of 2012 for having direction to the petitioner to give them the proper damage. The said writ petition along with the similar writ petitions have been disposed of by the order dated 23.07.2013 with direction as follows:
The matters shall be referred to the District Judge, South Tripura, Udaipur as the land concerned in all the writ petitions are situated within the territorial jurisdiction of the District Judge, South Tripura, Udaipur. The District Judge shall assess the due compensation following the principles and procedures of the Land Acquisition Act deeming this reference as if made under Section 18 of the Land Acquisition Act, 1894. Needless to say, the parties before this Court would be at liberty to submit their respective claims without prejudice to what they have stated in their affidavits filed before this Court. The parties would be allowed to adduce evidence in support of their respective claims and thereafter, the District Judge, South Tripura, Udaipur would determine the matter and pass the award as would deem proper in the fact and circumstances. The respondent No.2 shall be at liberty to deposit the amount as mentioned in the cheques as referred in Annexure-P/1 collectively in W.P.(C)No.30/2012 and Annexure P/2 in W.P.(C) No.521 of 2011, W.P(C)No.521 of 2011 and W.P.(C)No.521 of 2011, before the District Judge, South Tripura, Udaipur. The said amount shall be immediately released to the petitioners by the District Judge without prejudice to their claim including the claim of interest. Accordingly, it is ordered. The respondent No.2 shall transmit all records alongwith a copy of this order to the District Judge, South Tripura within a month from today.
[3] In terms of the said direction, due proceeding was initiated following the procedures: Further, by the order dated 14.10.2015 delivered in a batch of Civil Revision Petitions including CRP 108 of 2015 (North East Transmission Co. Ltd vs Shri Ajit Nag) this court had directed how to record the evidence. On 03.07.2017, in compliance thereof, the District Judge had passed the final order as under:
8) There is no dispute between the parties regarding nos. of trees and plants as were available in the land and those are mentioned in the chart below:-
Sl.No. 9
Name of tree
Girth of each tree as admitted by the parties
No. of trees
Remarks
1)
Kanak
1.2 meter
2
-
2
Kanak
1.5 meter
4
-
3 R
Jarul
1.3 meter
4
-
4 e g
Rubber
Not mentioned
795
5 years old
5 a r d
Rubber budded stamp
Not mentioned
10,360
-
9) regarding the quantum of compensation in respect of those trees except the rubber plants, as it appears the O.P.no.1 followed the Notification of Forest Department as relied upon by the petitioner also under Ext.7 and 8, as revealed from the assessment sheet of the O.P. No. 1 marked under Ext. A series and thereafter they calculated the value of Kanak and Jarul trees and no infirmity is found in that calculation, except the fact that in the assessment note some percentage of amount was deducted under some heads namely, "Deduction as per NESH/PESM/714 dated 19.01.2010", "90% of (O) due to pending approval of NETC" and "Amount payble 95% of (P) due to the pending signature of revenue authority". But the O.P. No. 1 could not justify as to on what basis said deductions were made and whether such deductions were supported by any provision of any law. Deduction cannot be made on the basis of any self created procedure unless same is done in accordance with law. How one can deduct 05% of the compensation on the ground that signature of revenue authority is pending. Thus, said deductions are held to be illegal and are not taken into consideration. Thus, total value of Kanak and Jarul trees are determined to be Rs.23,071/- as was calculated by O.P.no.1 excluding those arbitrary deductions. Regarding value of 5 years old 795 nos. of rubber trees, the O.P.no.1 has awarded Rs.957/- per tree. In this case, the petitioner relied and proved one letter of Joint Rubber Commissioner dated 28.3.2012 (marked as Ext.4) enclosing one Cost/benefit analysis chart made by Rubber Board in the year 2011 regarding cost of each rubber tree. As per said chart, no rubber plant start yielding before 7 years of age, and in our case, the age of rubber plantation was only 5 years. However, according to said Rubber Board, the development cost of each rubber plant of age 5 years is Rs.1950/- and salvage value is Rs.75/- and thus, expected loss on each rubber plant is Rs.2,000/-. In case of a plant of 7 years of age, there are some confusion in the chart e.g. in column no. 4 expected income per year‟ per tree is shown to be Rs.445/- and development cost has been shown to be Rs.660/- but again in column no. 5, expected net income‟ has been shown as Rs.8900/- per tree but in column no.7 expected loss‟ has been shown to be Rs.9760/-. When a tree or plant has started giving some income, how said income can be assessed in two different figure in two different column under expected income‟ or expected net income‟ and simultaneously how expected loss can be estimated for that year when net income is being assessed. Thus, for clarification of those matters, certainly the officer of Rubber Board is required to be examined. However, in our present case, the age of each rubber plant was 5 years and there is no confusion regarding the estimated loss of each such plant in the relevant columns of the chart. So, for the purpose of this case, said chart can be relied upon, though it may not be reliable in other cases without examining any expert from that Department where the age of rubber plantation is 7 years or more. However, in the document of Revenue Department as relied by O.P.no.1, rate of each rubber plant of age 4 to 5‟ years is shown as Rs.957/- and rate of rubber plant of age 5 to 6 years‟ has been shown as Rs.1027/-. A rubber plant of age of 5 years thus comes within both the said groups, but the O.P.no.1 has accepted the lower rate i.e. Rs.957/- per plant. It is not clear on what basis the Revenue Department had assessed the rate of rubber plantation, for, same comes within the exclusive domain of Rubber Board. Thus, the rate chart as proved by the petitioner is taken into consideration ignoring the chart of revenue department and value of each rubber plant is assessed at Rs.2000/- in lieu of Rs.957/- for said 795 nos. of Rubber plants. For 10,360 nos. of rubber budded stamp, Rs.10/- was awarded by O.P.no.1 for each stamp which is which is found reasonable. The point is decided accordingly partly in favour of the petitioner.
The petitioner has been further directed to pay the entire amount.
[4] Mr. S. Bhattacharjjee, learned counsel appearing for the petitioner has submitted that while determining the damage, the District Judge has considered the rate chart dated 11.11.2011 (Annexure-A series) prepared by the Joint Production Commissioner, NRETC, Rubber Board whereas the land was taken for use on an anterior date. Hence, the said rate being posterior to the acquisition of the requisition of the right cannot be applied to.
[5] That apart, Mr. Bhattacharjee, learned counsel has raised another plea that as regards the deduction what has been observed by the District Judge was nobody's case. Neither the claimant (the respondent No.1) nor the petitioner raised that plea issue in their statement. Therefore, the determination in respect of deduction is whooly unwarranted. The District Judge has therefore acted illegally by giving the direction to the release the amount as deducted by the petitioner. Since, there is no representation for the respondents No.1 and 2, this court is of the view that it seems that hose respondents have lost their interest in this petition. Notwithstanding that, this court is under obligation to weigh the reasonableness in the plea raised by the petitioner.
[6] Mr. Bhattacharjee, learned counsel has accepted that the observation of the District Judge that the account of rubber trees as were standing on the acquired land is undisputed. The controversy is as regards their valuation of 795 rubber trees are of 5 years old. What Mr. Bhattacharjee has asserted that the Rubber board had determined the rate in the month of February, 2011. The rate was further revised in the month of November, 2011. The rate so determined in the month of November, 2011 is also not in dispute by the petitioner. The objection is structured to contend that the rate which has been determined after a month i.e. in the month of December, 2011 how that can be applied on the trees which were standing on the land, right to use of which has been acquired by the petitioner in the month of November, 2011. This court is not oblivious that the Rubber Board is the only statutory Board which is engaged dealing in the rubber from the plantation to its business. Undoubtedly, the Rubber Board is an expert body in this regard. Even Mr. Bhattacharjee, learned counsel for the petitioner has not questioned that position.
[7] This court having appreciated the evidentiary materials as brought in the records is of the view that the rate as determined in the month of February, 2011 was not contemporary, rather the rate of the month of November, 2011 is. As such, this court does not find any infirmity, particularly for relying the rate chart of November, 2011. The other objection that has been raised in the petition is that the District Judge has interfered with the deduction made at the rate of 5%. As per the standing instruction, pending approval of the NRETC or the revenue authority such deduction was made. Let us consider the very provision in the Indian Telegraph Act, 1885 which conferred the jurisdiction to reassess the damage to the District Judge. The District Judge is therefore empowered to determine the sufficiency of damage. Section 10 of the Indian Telegraph Act, 1885 provides that the Telegraph Authority shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of the power under Section 10 of the Indian Telegraph Act, 1885.
[8] Section 16 of the Indian Telegraph Act, 1885 has provided the redressal mechanism if there is grievance in respect of determination under Section 10 of the Indian Telegraph Act, 1885.
[9] For our purpose, Section 16(3) of the Indian Telegraph Act, 1885 is relevant. Section 16(3) reads as follows:
"16. Exercise of powers conferred by section 10, and disputes as to compensation, in case of property other than that of a local authority.
(1) xxxxxxxx
(2) xxxxxxxx
(3) If any dispute arises concerning the sufficiency on the compensation to be paid under Section 10 clause (d), it shall on application for that purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situate, be determined by him."
[10] It is not the dispute that has been brought before the District Judge is determined in exercise of the power under Section 16 (3) of the Indian Telegraph Act, 1885 but it is the sufficiency of the compensation that is visited by the District Judge for determining the just compensation. Hence, the plea that has been raised by Mr. Bhattacharjee is bereft of any substance and accordingly discarded.
Having observed thus, this court does not find merit in this petition and accordingly the same is dismissed.
However, there shall be no additional order as to costs.