Shipra Biswas Majumder vs Sankar Baishnab And Anr.

In a reference under Section 30 of the Land Acquisition Act, 1894, the learned Land Acquisition Judge, Belonia, South Tripura had taken the responsibilities of determining the entitlement of the parties to the lis to the amount of compensation or proportionate apportionment of the acquired land, that was acquired by the Land Acquisition Collector, Belonia, South Tripura for construction of new railway line from Agartala to Sabroom at Mouja Sarasima under Belonia Sub-Division vide No.F.9(5)REV/ACQ/XII/2012, dated 28.04.2012 for a 'tilla' class of land, measuring 0.32 acres under Khatian No.2088, Plot No.5636/6495/p.

The dispute, as referred to, was that according to the L.A. Collector, Sri Sankar Baishnab and Smt. Dipali Baishnab, claimed compensation out of the acquired land in one side, and Smt. Shipra Biswas(Majumder) claimed the entire awarded amount of compensation, on the other.

The learned L.A. Judge decided the reference in the manner as follows:

"16. In the case at hand, it is admitted that the first party-petitioners executed exhibit-A, the deed of lease in favour of the second party-petitioner although such registered deed is void in law. But the second party- petitioner has proved that the second party-petitioner after taking permission of Rubber Board planted rubber trees thereon at the expenses of the second party- petitioner and the L.A. Collector also assessed compensation for the trees damaged. Therefore, the second party-petitioner has proved that the second party-petitioner is also 'person interested' in the compensation and in equity also the second party- petitioner is entitled to the compensation for the trees which the second party-petitioner developed at the expenses of the second party-petitioner. Therefore, the first party-petitioners Sri Sankar Baishnab and Smt. Dipali Baishnab are entitled to the amount of compensation given for the acquisition of the land without trees and the second party-petitioner is entitled to the compensation given for the trees damaged.

The assessment shows that, the L.A. Collector paid solatium @ 30% under Sec. 23(2) LA Act. On calculation I find anomaly because this amount of solatium does not form 30% of the compensation given for the land or 30% of the entire compensation given for the land and trees. But this area is not within the scope and ambit of adjudication by this court in this proceeding. The L.A. collector also paid 12% additional compensation for the land for four months.

In a quest to answer who will the get the amount of solatium and additional compensation, I beneficially refer to section 23 of the L.A. Act. The definition of 'land' although inclusive of trees for the purpose of computing compensation as defined in section 3 of the L.A. Act but, for the purpose of assessing compensation under section 23, the first clause is the market value of the land at the date of publication of notification under section 4(1). The second clause is for damage sustained by the 'person interested' by reason of taking any standing crops and trees. Which means section 23 has segregated the area of compensation for land, trees, etc. Therefore, subsection (2) of section 23 mandates that, in addition to the market value of the land as above provided, the court shall in every case award a sum of 30% on such market value. Therefore, since sub section (2) indicates the value of the land as above provided, it means the value of the land provided in the first clause of section 23. Therefore, this amount of 30% is clearly for the land acquired. But not for the trees damaged. As such, the first party- petitioners Sri Sankar Baishnab and Smt. Dipli Baishnab are entitled to the amount of solatium as they are entitled to the compensation for the acquired land. Similarly, sub-section 1(A) of section 23 L.A. Act indicates that, in addition to the market value of the land above provided, the court shall award an amount of 12% p.a. on the market value for the period as indicated therein. Which further indicate that, this amount of 12% shall be paid on the amount of compensation paid for the land acquired, but not for the amount of compensation given for damaging trees. Meaning further thereby, since the title of he land acquired is always with the first party- petitioners, the first party-petitioners are entitled to the amount of compensation awarded as 12% additional compensation for four months.

All the issues are decided accordingly.

A W A R D

In the result, it is ordered that the first party- petitioners Sri Sankar Baishnab and Smt. Dipali Baishnab are entitled to the compensation awarded for the land including the amount of solatium and additional compensation and the second party-petitioner Smt. Shipra Biswas (Majumder) is entitled to the amount of compensation awarded for the trees damaged."

Feeling aggrieved and dissatisfied with the findings as afore-stated under judgment and award dated 20.02.2019, passed in case No.L.A.(Ref.) 42 of 2015, Smt. Shipra Biswas(Majumder) has preferred the present appeal under Section 54 of the Land Acquisition Act, 1894.

The background arises in this appeal may be discussed in brief:

4.1. Sri Sankar Baishnab and Smt. Dipali Baishnab, the respondents, who were the original first party- petitioners in their claim statement, stated that the acquired land was allotted to them by the Government of Tripura. They claimed to the L.A. Collector to pay the entire compensation money for acquisition of the land in question in favour of them, but, the respondent(original second party-petitioner), Smt. Shipra Biswas(Majumder) raised objection and claimed the entire amount of the award.

4.2. The respondents, being the owners by dint of such allotment, stated that the appellant taking advantage of their ignorance, got a registered lease deed in her name although, no such permission was taken by the respondents-owners from the L.A. Collector before registration of the lease deed. Therefore, the appellant could not acquire any right, title and interest over the acquired land because of violation of Rule 12 of the Tripura Land Revenue and Land Reforms (Allotment of Land) Rules, 1980.

4.3. The appellant in her claim statement pleaded that at the time of acquisition of the land, the respondents had no right, title and interest or possession over the acquired land, and as such, cannot claim any compensation. The right, title, interest and possession of the respondents got extinguished because of the registered lease deed executed by the respondents for 99 years.

It is further pleaded that the appellant paid Rs.24,948/- to the first party-petitioners as premium for 99 years at the rate of Rs.252/- per year, and consequently, the first party-petitioners handed over the vacant possession of the acquired land to the appellant. The appellant cleared the jungles of the acquired land and planted rubber plants by taking permission of the Rubber Board Regional Office, Udaipur and planted other trees, like Teak, Garjan, Koroi, etc. in some parts of the acquired land. The Rubber Board also issued certificate for tapping of rubber trees in favour of the appellant on 20.12.2011, and accordingly, the appellant started collecting latex from the month of January, 2012.

It is further pleaded that under TLR & LR(Allotment of Land) Rules, 1980, the allottee has to bring the whole area under cultivation within the time specified in the allotment order, otherwise, the order of allotment is liable to be cancelled. As such, the appellant claimed the entire amount of compensation to be paid to the appellant herein.

The claim on behalf of the appellant that the compensation determined out of the acquisition of the land in question and the nature of right, title and interest held by the appellant over the said land as lessee does not appeal to me for acceptance. The appellant herself admitted that she entered into the land in question by dint of an agreement between her and the respondents as owners. In this admitted position, the appellant being the lessee is estopped from raising the question of ownership of the respondents on the ground that the respondents being the owner by way of violating the conditions of allotment entered into a lease agreement with the appellant.

The relevant records and documents apart, though the dealings, conduct and claims as to their respective status, inter se relationship vis-à-vis the land in question and their rights and interests therein seem to present a varying, discordant and disorientated picture on account of a disorganized handling of such matters at different stages and points of time, certain vitally relevant aspects necessary for adjudication of the disputes raised in this appeal admit of no serious controversies or disputes. To notice some such of them are-evidentiary value of registered lease deed No.1-2056 dated 18.11.2002(Exbt.A) executed by the respondents; the un-registered disclaimer agreement dated 15.03.2003 in favour of the appellant; the plea of the appellant that the respondents received full consideration amount of Rs.80,000/- from the appellant for executing the disclaimer deed dated 15.03.2003 extinguishing their right, title and interest over the land in question forever; violation of the terms of allotment by way of executing disclaimer deed relinquishing their claim over the suit property in question forever made in violation of the Allotment Rules, 1980; permission obtained by the appellant to plant rubber trees and other trees and enjoying the fruits of those trees. In my opinion, these factors which are on record would not extinguish the title over the land in question in any manner whatsoever.

Now, what have been gleaned, admittedly, the respondents at the time of acquisition had the valid title over the land in question and the appellant had been possessing the same by way of planting rubber trees, etc. at her own cost and expenses over the land and enjoying the benefit of those trees. It is further transpired from the lease deed(Exbt.A) that the lease was granted for 99 years, which throws enough light to establish the fact that the respondents-owners had almost lost their interest over the land in question and only they remained satisfied with the rent as was fixed in the said lease deed(Exbt.A).

Thus, in this situation, the questions now put in issue by the parties are:

(a) Whether the appellant could completely deny the rights and interests of the respondents so as to deprive them of their claims for compensation?

(b) What are the respective interests of the parties, the appellant on one side and the respondents- claimants on the other in the properties acquired; and

(c) How their respective interests have to be valued and whether the manner of determination undertaken by the learned L.A. Judge is correct or that it requires interference in the present appeal?

Here, it would be appropriate to advert some of the principles adopted by the Apex Court for determination/apportionment of compensation considering the nature and character of the lease:

In Hamidullah v. Sk. Abdullah, (1972) 4 SCC 800 : AIR 1972 SC 410, it was observed that in every case the inference to be drawn as to the permanency of tenancy would be a question of fact depending upon the facts of each particular case and the onus is always upon he who asserts such claim.

In Inder Parshad v. Union of India, (1994) 5 SCC 239, the Apex Court while dealing with the compensation payable and apportionment of the same between the lessee and the owner of nazul land owned by the Government itself but given on perpetual lease by the Government with right to re-entry on breach of covenants, when being acquired under the provisions of the Land Acquisition Act, 1894, held that the fixation of the proportion by the High Court at 75% and 25% respectively as payable to the lessee and the Government was right and that does not call for interference of this Court.

In Union of India v. A. Ajit Singh, (1997) 6 SCC 50, a Bench consisting of three learned Judges, while dealing with the apportionment of compensation between the tenant and landlord on the land being acquired under the Land Acquisition Act, 1894 in respect of government land held by the tenant under a lease for thirty years with a right to further renewal up to a maximum period of 99 years, held that the ratio of 60% to the tenant and 40% to the landlord for apportionment of the compensation would be a reasonable ratio.

Again, in Kachrulal Hiralal Dhoot v. Gurudwara Board, Nanded, AIR 1979 Bom 31, a Division Bench of the Bombay High Court held that in the matter of apportionment of compensation under the Land Acquisition Act between owners of land and permanent tenants/permanent licensee, if the right of the owners was only to receive every year a certain sum, then naturally upon acquisition of the property including their interests in the land, they would receive the compensation which would be arrived at upon capitalization of twenty years' income and that the rest has to be paid to the other claimants/permanent tenants/permanent licensees. In Shiam Lal v. Collector of Agra [AIR 1934 All 239 : 1934 All LJ 8 (FB)] a Full Bench of the High Court held that where an agricultural land of Zamindar over which the tenant has occupancy right is acquired by the Government under the Land Acquisition Act, the compensation awarded should be apportioned in the ratio of 10:6 annas, as between the Zamindar and the tenant, in the absence of evidence to the contrary, though not as a rule of law but as a rule of practice.

Applying the aforesaid ratio, the Apex Court in Brij Behari Sahai vs. State of Uttar Pradesh, (2004) 1 SCC 641, held that the fixation of apportionment in the ratio of 75% in favour of the claimants/tenants and 25% in favour of the State would be just and reasonable.

Keeping in mind the ratio as narrated here-in- above for determination/apportionment of compensation, I am of the opinion that the stand taken by the parties requires further consideration for effective determination of the respective claims of the parties to the lis as to the rights into the property acquired and the payment/apportionment of compensation in respect of the same. Taking note of the plea of the respondent-owners that the appellant taking advantage of their ignorance, had forced them to enter into the lease deed, I am of the opinion that this plea will be of no consequence to resolve the disputes/issues as formulated here-in-above. In my considered view, the respondents are precluded from raising such plea and the principle of estoppel will come into play for their own conduct after lapse of so many years of executing the lease deed(Exbt.A) accepting the appellant as lessee and, they being the lessor.

Now, coming to the question of determination of the point (a) whether the appellant could completely deny the rights and interests of the respondents so as to deprive of their claims for compensation, I am of the view that since the title of the land in question remained with the owners at the time of its acquisition, the rights and interests of the owners of the land, i.e. the respondents cannot in any way be denied and they are entitled to their legitimate share in the process of apportionment of the compensation over the said land.

As I observed, the learned L.A. Judge decided that the respondents being the owners of the land would receive the entire compensation as assessed, out of the land in question along with all statutory benefits including 12% additional compensation for four months, in my view, the learned L.A. Judge proceeded on wrong notion contrary to the said principles of law while deciding the entitlement of the owners of the land for receiving total amount of compensation out of the land along with statutory benefits including additional compensation as stated above.

I have taken into consideration the nature of the lease deed and the period of the lease, wherein I find that the land in question was leased for 99 years in favour of the appellant, which is sufficient to justify that the respondent-owners had lost almost all of their interests over the land. They allowed the appellant to use and utilize the land for the appellant's benefit only in lieu of rent fixed by both the lessor and lessee on their own satisfaction, which, remained unchallenged for the last many years; as such, only for the reason that title was lying with them would not enure the respondent-owners to get the entire compensation out of the acquired land.

The nature of transaction apparent on the face of the lease deed(Exbt.A) aptly suggests that the land owners(respondents) granted a lease in perpetuity. Furthermore, the conduct of the respondents to lease out the land in question for 99 years, disentitled them to get the entire amount of compensation out of the land. Unquestionably, the total acquired land was developed by the appellant at her own cost and expenses. But, at the same time, this conduct of the respondent-owners would not enure the appellant to claim the entire compensation money as assessed, out of the land in question since her status being only 'lessee'.

Now, dealing with 3rd point, (c) as to how their respective interest has to be followed and whether the manner of determination undertaken by the learned L.A. Judge is correct and that requires interference in this appeal, I have kept in mind the ratio of the decision as stated supra.

On culmination of different factors while determining the ratio of apportionment, in my opinion, in the present case, the fixation of apportionment in the ratio of 55% in favour of the appellant, possessor of the land in question, and 45% in favour of the respondent-owners would be just and reasonable on the facts of the present case.

Consequent to this fixation of ratio of apportionment, the appellant-possessor will be entitled to receive the benefit of her proportionate share in respect of all statutory benefits including interest at the ratio of 55% and the respondent-owners at the ratio of 45%. Further added to it, the additional compensation for four months as awarded @12% shall also be apportioned at the ratio of 55% in favour of the appellant-possessor, Smt. Shipra Biswas(Majumder) and 45% in favour of the respondent- owners i.e. Sri Sankar Baishnab and Smt. Dipali Baishnab, of the land in question.

In the above backdrop and analysis of facts and law, the rights of the respective parties over the land in question have been decided with the determination of apportionment of the total awarded amount at the ratio of 55% in favour of the appellant, Smt. Shipra Biswas(Majumder) and 45% in favour of the respondent- owners, Shri Sankar Baishnab and Smt. Dipali Baishnab.

In the result, the judgment and award passed by the learned L.A. Judge shall stand set aside. Resultantly, the appeal stands allowed with fresh determination of the ratio of apportionment as indicated here-in-above.

The L.A. Collector is directed to quantify the compensation in consonance with the aforesaid ratio as determined and fixed by this Court in favour of the appellant and land owners-respondents and make payment in favour of them within 3(three) months from the date of receipt of the copy of this judgment.