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Judgment
Heard Mr. A. De, learned counsel appearing for the appellant as well as Mr. DC Nath, learned counsel appearing for respondent.
This is an appeal under Section 54 of the Land Acquisition Act, 1894 from the judgment and award dated 22.07.2013 delivered in Misc. (LA) 43 of 2010 by the Land Acquisition Judge, Court no.4, West Tripura, Agartala.
The facts which are not in dispute are that the land attracted by Khatian no. 442, CS plots No. 21132, 21138, 21813/P of Mouja- Badharghat was acquired from the appellant for upgradation of the link road from NH-44 to Tripura Medical College and Dr. BRAM Teaching hospital, Hapania in pursuance to the notification dated 14.12.2005 under Section 4 of the Land Acquisition Act and the subsequent declaration dated 29.12.2005 and the Requiring Department came into the possession. Before that the Land Acquisition Collector assessed the price of the land at Rs.4,40,000/- per kani and thereon the compensation was scaled in terms of Section 23 of the Land Acquisition Act.
Being aggrieved by the said determination, the appellant pressed a reference under Section 18 of the Land Acquisition Act being Misc (LA) 43 of 2010. By the impugned judgment and award dated 22.07.2013 as stated, the rate of the land on appreciation of the evidence has been enhanced to Rs.7,10,000/- per kani. It has been directed to calculate the compensation after adding the essential components as provided under Section 23 of the Land Acquisition Act and also to give interest as per provision of Section 34 of the Land Acquisition Act.
Mr. De, learned counsel has simply submitted that the land acquired under the same project and under the same notification had fallen for consideration by this court in LA Appeal 12 of 2012 [Krishnadhan Bhattacharji vs. Executive Engineer, PWD and another]. By the judgment dated 25.08.2015, this court had observed as under:
"11. Let us now see the documents which the L.A. Collector himself considered at the time of determination of compensation. The assessment note which has been proved as one of the items of Exhibit-A series shows that 7(seven) Sale-deeds were considered by the L.A. Collector. D.W.1 in his examination-in-chief submitted by affidavit in Para- 7 has reflected 7 sale instances as well as the observation of the L.A. Collector while determining the compensation. The relevant part of Para-7 of the examination-in-chief of D.W.1 reads thus:
That, the L.A. Collector, West Tripura, Agartala, i.e. the Opposite Party No.2 relied on the following Sale Deeds for assessment of compensation of the acquired land:-
Sl.
No.
Deed No. & Date.
Classification of land.
Value of land per kani.
Distance from the acquired land.
1.
1-1838
dt.17.02.04
Viti
Rs.14,49,275/-
400 ft.
2.
1-1307 dt.06.02.04
Viti
Rs.5,64,971/-
On the acquired land.
3.
1-2810 dt.27.03.02
Viti
Rs.2,00,000/-
19 ft.
4.
1-7745
dt.27.08.01
Tilla
Rs.4,00,000/-
370 ft.
5.
1-7187 dt.09.08.01
Tilla
Rs.3,08,000/-
On the acquired land.
6.
1-1237 dt.07.02.01
Dokan/tilla
Rs.1,33,33,333/
-
On the acquired land
7.
1-9277 dt.22.10.01
Dokan/Tilla
Rs.73,84,615/-
On the acquired land.
I also state that after careful observation of all the aforesaid sale deeds, it appears that the lands of Sl.Nos. 1 & 4 are far away from the proposed acquired land and near to Hapania Market. The amenities of these lands were far better than that of the proposed land, due to its advantageous position having link with Agartala-Bishalgarh Road. On this analogy the rates of these two sale deeds cannot be applicable for the land to be acquired. The Sale deeds at Sl.Nos._ 7 & are related to transfer of land having small quantum of land. According to the L.A. Manual acceptance of sale prices of such deeds are restricted. Other three sale deeds at Sl. Nos. 2,3 & 5 were executed in different years from 2001-2004 involving similar class of land for transfer of small quantum of land (more than the area transfer through deed No.6 & 7). In such cases of transfer normally the sale price of land do not reflect true picture because such land attracts more buyers to purchase such type of land at higher rates. As there was no other alternative, this point was ignored for determination of value of land. But the rates of different deeds vary abnormally between Rs.2 lakhs to 5 lakhs which might be due to execution of deeds in different years. After careful consideration/observation of all the aforesaid sale deeds, L.A. Collector emphasized upon the deeds of Sl, Nos. 2, 3 & 5 which are relevant to determine the value of the acquired land. The L.A. Collector, West Tripura after making all formalities and on the basis of relevant provision considering all the facts and circumstances, value of the above sale instruments of land in the vicinity of the acquired land and near to the date of acquisition determined at the rate of Rs.4,40,000/- per kani for Viti (tilla) and at the time rate of Rs.1,00,000/- per kani for Path class of land."
Though seven sale instances were collected and considered by the L.A. Collector at the time of determination of compensation as reflected above in the statement of D.W.1, only the Sale-deeds at Sl. Nos. 2, 3 and 5 have been produced before the learned L.A. Judge and those are marked as Exhibit-A series. Other Sale-deeds not produced. Out of those 7(seven) Sale-deeds, it appears Sale-deeds at Sl. Nos. 6 & 7 relate to Dokan/tilla (shop) class of land and so the price might be different than that of ordinary viti(tilla) class of land. Out of other 5(five) Sale-deeds i.e. Sale- Deed No.1 to 5, it appears that Sale-deed at Sl. No.1 carries price of Rs.14,49,275/- per kani; Sale-deed at Sl. No.2 carries price of Rs.5,64,971/- per kani; Sale-deed at Sl. No.3 carries price of Rs.2,00,000/- per kani; Sale- deed at Sl. No.4 carries price of Rs.4,00,000/- per kani and Sale-deed at Sl.No.5 carries price of Rs.3,08,000/- per kani. All those sale instances relate to viti and tilla class of land. The acquired land of the petitioner is viti(tilla) class of land and that fact is undisputed fact. While determining compensation, it is apparent that L.A. Collector made an average of the different sale instances and did not accept the price carried in the highest exemplar. The sale instance mentioned in Sl.No.1 i.e the Deed No.1-1838 dated 17.02.2004 shows that it was of viti class of land and the value of the land per kani was Rs.14,49,275/- and that plot of land was situated only 400 ft. away from the acquired land. There is no justification as to why that price of the Sale-deed was not awarded as compensation for acquisition of the land of the claimant-petitioner.
The Supreme Court in the case of Mehrawal Khewaji Trust (Regd) v. State Of Punjab & Ors. reported in AIR 2012 SC 2721 has held that where there are several exemplars with reference to similar lands it is a general rule that the highest of the exemplar should be accepted for determination of market price of the acquired land. We may refer here Para 15 of the judgment which reads as follows:-
"15. 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."
It is quite clear from the pleadings and the evidence on record that the acquired land is situated very near to the junction of the link road near Dr. B.R. Ambedkar Hospital and other Govt. establishments. The acquired land measures an area of 0.125 acres and the sale instances mentioned in Sl.No.1 of the assessment note was for 0.0552 acres. I, therefore, find nothing to deduct from the price reflected in the said sale instance. A deduction is proper where the exemplar is of a very small piece of land whereas the acquired land is a vast area of land. Here both the exemplars as well as the acquired land were of small piece of land and the acquired land is most potential land having several advantages and therefore, considering the pleadings and evidence on record, I find no minus factors and therefore, finds no justification at all to have any deduction from the price appeared in sale instance No.1 of the assessment note which reflected in item No.1 of the evidence of D.W.1 as reproduced hereinabove.
I am, therefore, of considered opinion that both the L.A. Collector as well as the L.A. Judge was not correct in fixing the price of the acquired land. There is no justification at all to fix different price for viti and path class of land. A path is also a viti class of land in a compact area. Therefore, I feel it proper to fix the price of the acquired land @ Rs.14,50,000/- per kani taking into the highest sale instance of viti class of land as per the documents relied upon by the L.A. Collector and the respondents are directed to pay compensation to the appellant-claimant for the acquired land @ Rs.14,50,000/- (Rupees fourteen lakh fifty thousand) per kani. In addition thereto, the appellant-claimant shall be entitled to interest, solatium etc. as per the direction made by the learned L.A. Judge.
[Emphasis added]
Mr. De, learned counsel has submitted that following the principles of Section 28A of the LA Act, the similar rate is entitled to the petitioner. That apart, Mr. De, learned counsel has drawn the attention of the court to the evidence of one Sri Debananda Debbarma, who gave the statement on oath before the court of the Land Acquisition Judge. In the examination-in-chief, the said witness has also relied on the same table, as has been relied in Krishnadhan Bhattacharjee (supra). The Land Acquisition Judge did not consider the law laid down in Mehrawal Khewaji Trust (Regd) vs. State of Punjab and others reported in AIR 2012 SC 2721 and decided by way of comparison between the sale exemplar as was on record by returning the following finding:
"It appears from the sale deeds submitted by the refereeing claimant that each of the sale deeds relates to transfer of land of miniature quantum i.e. 0.02 to 0.03 decimals of land only. 1 kani land is equal to 40 decimals. The acquired land of this case is 08 decimals. A person for his extreme necessity may purchase 0.02/0.03 decimals of land at an extreme high rate but he would not certainly purchase 08 decimals of land at the rate of 0.02/0.03 decimals and as such the rate per kani of land of 0.02/0.03 decimals cannot be the rate of per kani of 08 decimals acquired land of this case. Moreover, the nature of land of referred sale deed by referring claimant is 'Dokan Viti' class which is used for commercial/business purpose having high potential value. Whereas the land of the case is simply a Viti(Tilla) class of land which is not being used for commercial/business/dokan purpose. Considering all the above points the sale deeds referred by the referring claimant can not be considered as comparable sale deed in this case.
On the other hand, the L.A. Collector referred 3 nos. of sale deeds mentioned above. The class of land is similar to the class of land of this case and there is a consistency about the rate of all those sale transactions ranging from Rs.2,00,000/- to Rs. 5,64,971/-. The average rate comes to Rs.3,54,990/- say Rs.3,55,000/- per kani. The lands are also on the proposed acquired land. The time of sale transaction ranging from 2001 to 2004. The average time of sale transaction was in the year 2003. All the above factors are favourable to consider the sale transactions as comparable sale deeds in this case. The rate of land in Tripura is increasing gradually. The average rate in the year 2003 appears to be Rs.3,55,000/- per kani and as such presume that the market value of the acquired land of Viti (Tilla) class of land should in the year 2005 be at least double which on calculation comes to Rs.7,10,000/- per kani. Accordingly, I award compensation @Rs.7,10,000/- per kani for Viti (Tilla) class of land".
There is no dispute that the acquired land is a viti tilla class of land. Mr. De, learned counsel has submitted that the land as has been assessed in Krishnadhan Bhattacharjee (supra) is also a viti class of land and therefore even there is no distinction in the class of land and thus the said judgment can squarely be applied.
On the contrary, Mr. Nath, learned counsel has submitted on why the highest sale deeds as referred in the table above were not considered by the Land Acquisition Collector. He has continued to submit that the sufficient reasons were given in the paragraph below the said table, which has been extracted in Krishnadhan Bhattacharjee (supra). According to the Land Acquisition Collector, those two sale deeds fetching much higher rate cannot be applicable for the acquired land. The sale deeds at serial No. 7 and the sale deed at serial No. 1 are related to transfer of land having small quantum of land. According to the LA manual, acceptance of such deeds is restricted. However, he has relied on the other three sale deeds for determining the price. Mr. Nath, learned counsel has fervently urged this court to re-appreciate that part of the observation made in the judgment of Krishnadhan Bhattacharjee (supra), but this court is not inclined to take up that exercise inasmuch as it would amount to sit as the appellate court on the judgment of Krishnadhan Bhattacharjee (supra). That apart, Mr. Nath, learned counsel, has on query from this court, clearly admitted that the government has implemented the said judgment and the payment has been duly made to the land loser.
Having regard to that aspect, this court is not pursuaded to accept the analogy, as advanced by Mr. Nath, learned counsel. According to this court, in view of Mehrawal Khewaji Trust (supra) the price of the land is decided on the basis of the sale deed as referred and considered by the LA Collector and the highest sale deed for the same class of land has been accepted in Krishnadhan Bhattacharjee (supra). The sale deed in serial No. 1 of that table being 1-1838 dated 17.02.2004 reflects the rate at Rs. 14,49,274/- per kani. Thus, the rate as has been accepted in Krishnadhan Bhattacharjee (supra) is in tune with the principles as laid down by the Apex Court in Mehrawal Khewaji Trust (supra).
In view of the said judgment, the appellant is also entitled to the rate of Rs.14,50,000/- per kani for the land, as acquired from him. Thereafter, the other components of the compensation in terms of Section 23(1) (A) and 23(2) of the LA Act shall be applied for coming to the compensation. It is made further clear that solatium shall carry interest in terms of Section 34 of the LA Act from the date when the respondent came into possession over the acquired land.
Thus, the appeal is allowed. The respondent is directed to deposit the compensation in terms of this judgment in the court of the Land Acquisition Judge, Court no.4, Agartala, West Tripura within a period of 3 (three) months from the day when the respondents shall receive a copy of this judgment and order.
Draw the award/decree accordingly.
Send down the LCRs thereafter.
A copy of this judgment and award shall be forwarded to Mr. Nath, learned counsel for his doing the needful.