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Judgment
Heard Mr. B. Majumder, learned CGC appearing for the appellant as well as Mr. R. Paul, learned counsel appearing for the respondent no.1 and Mr. P. Gautam, learned counsel appearing for the respondent no.2.
By means of this appeal under Section 54 of the Land Acquisition Act, 1894 the judgment and award dated 19.09.2011 delivered in Misc. (LA) 18 of 2009 by the Land Acquisition Judge, Court no.3, West Tripura, Agartala has been called in question.
By the notification dated 26.04.2004, the respondent no. 2 acquired a piece of land measuring 0.13 acres covered by plots no. 880/9041/P (tilla) within Anandanagar Mouja recorded in Khatian no. 1119 from the respondent no.1 for construction of NF Railway line from Kumarghat to Agartala. Having received the notice under Section 9 of the Land Acquisition Act, the respondent no.1 claimed Rs. 10 lakh per kani for the acquired landand for purpose of drawing up the compensation, the Land Acquisition Collector had appreciated 6(six) Sale Deeds which are noted as below [part of the assessment sheet] and determined the rate for various classes of land. For making reference, the relevant part of the assessment sheet in LA case No. 18/Blg/04 which includes the land acquired from the respondent no.1 are reproduced hereunder:
Sl. No
Mouja
Plot No.
Classification of land
Area in acre
Deed No. & date
Total value of land
Value of land per kani
Distance of the land from proposed
acquired land
1
2
3
4
5
6
7
8
9
1.
Anandanagar
175/8824
Nal
0.15
1-2805 dtd.
11.04.03
Rs.20,000
Rs.53,333/-
820 ft.
2.
-do-
172
164
174
173
157
Tilla
1.72
1-2806 dtd.
11.4.03
Rs.1,30,000/-
Rs.30,233/-
870 ft.
3.
-do-
96
Tilla
0.15
1-9361 dtd.
30.10.02
Rs.20,000/-
Rs.53,333/-
0 ft.
4.
-do-
230
231
Nal
0.08
1-1542 dtd.
10.2.04
Rs.60,000/-
Rs.3,00,000/-
0 ft.
5.
-do-
219/9423
Tilla
0.04
1-3641 dtd.
26.4.04
Rs.10,000/-
Rs.1,00,000/-
0 ft.
6.
-do-
96
Tilla
0.15
1-9379 dtd.
30.10.02
Rs.20,000/-
Rs.53,333/-
0 ft.
"Examined all the six sale instances in a lucid manner. The sale instance at Sl. No. 1& 2 for Nal & Tilla classes of land are located a bit away from the proposed acquired land. Therefore, these sale instances may not fetch good example for assessment of 'Tilla' & 'Nal' and allied potential land in the locality.
The sale instance at Sl. No.5 above was executed on the date of issue of notification. Therefore, this may not be considered as a fit instance for determination of Tilla class of land for the proposed acquired land.
The sale instance at Sl. No. 3 & 6 for Tilla class of land s located on the proposed acquired land and was executed just 2 years before the date of Notification U/s 4. Therefore, this may fetch a good example for assessment of 'Tilla' and allied potential land in the locality with some increase in valuation considering price hike in 2 years.
The sale instance at Sl. No.4 for Nal class of land is located just on the proposed acquired land and was executed just 2 months before the date of issue of Notification U/s 4. But, in this case it appears that the rate is much higher and showing inconsistency with respect to the other classes of land. This execution of deed at a higher rate may happen with an intention to get higher valuation for the proposed acquired land since at the time of execution, the nearby jotedars are supposed to be in the know that the proposed land is going to be acquired as the land survey and proposal initiation for acquisition had already been started at that time. Hence, this exorbitant rate cannot be considered for assessment of valuation of "Nal' class of land rather a proportionate and logistic rate, as follows, may be considered for assessment.
Reference sale instances for 'Bastu' Viti, Bagan and Chara classes could not be found at the time of collection of sale instances. Therefore, valuation for these classes of lands may be assessed proportionately following valuation for other classes of land in the locality.
Road, Layekpatit, Indara & Path are of almost similar classes of lands and are of inferior potential land than all other classes. Therefore, valuation for these classes may be fixed as under. On the other hand, 'Viti' lands can often be used as 'Bastu' and vice versa.
Considering all the aspects discussed above, I have come to conclusion that the rate/kani should be as mentioned below-
Sl.No
Class of land
Compensation given by the Court (per kani)
1.
Bastu, Bastu (Tilla)
Rs.3,00,000/-
2.
Bagan(Tilla)/Chara Tilla
Rs.2,50,000/-
3.
Nal
Rs.2,00,000/-
4.
Viti(Nal),Chara(Nal)/Lunga
Rs.1,50,000/-
5.
Tilla
Rs.75,000/-
6.
Indara,Road,Layekpatit(Tilla), Path
Rs. 20,000/-
30% Solatium shall be added to the land compensation as per provision of section 23(2) of the L.A. Act".
[Emphasis added]
Being aggrieved by that assessment, the respondent no.1 pressed for reference under Section 18 of the LA Act for determining the just market value of the acquired land. The said reference was registered as Misc.(LA) 18 of 2009. By a common judgment and award dated 19.09.2011 the said reference was determined along with other references by the Land Acquisition Judge. The Land Acquisition Judge has enhanced the rate in the following manner:
Sl.No
Class of land
Compensation given by the Court (per kani)
1.
Bastu, Bastu (Tilla)
Rs.4,26,000/-
2.
Bagan(Tilla)/Chara Tilla
Rs. 3,76,000/-
3.
Nal
Rs. 3,26,000/-
4.
Viti(Nal),Chara(Nal)/Lunga
Rs. 2,76,000/-
5.
Tilla
Rs.1,38,000/-
6.
Indara,Road,Layekpatit(Tilla), Path
Rs. 40,000/-
They are also entitled additional amount @ 12% under Section 23(1A) of the L.A. Act and solatium under Section 23(2) of the L.A. Act. The referring- claimants will be entitled to interest at the rate of 9% per annum from the date of possession for one year and at the rate of 15% per annum from the date of expiry of one year till the date of payment on the total compensation amount including additional amount under Section 23(1A) of the L.A. Act and solatium under Section 23(2) of the L.A. Act.
For enhancing the said rate, the Land Acquisition Judge has given the reasons which are broadly as under:
The referring-claimants in support of their claim produced certified copy of registered sale deed No. 977 dated 02.2.2002 along with one photocopy of the said deed.
On the other hand, the L.A. Collector also submitted photocopy of sale deeds such as:
Sale Deed no. 1-2805 dated 11.4.2003
Sale Deed no. 1-2806 dated 11.4.2003
Sale Deed no. 1-9361 dated 30.10.2002 and
Sale Deed no. 1-9379 dated 30.10.2002.
The L.A. Collector has also submitted copy of notification, assessment note, apportionment of compensation, and map of Anandanagar Mouja.
On examination of the sale transaction referred by the L.A. Collector it appears that tilla class of land was sole @ Rs.53,333/- per kani and there is a consistent rate in between all the sale transactions. The land of all those sale transactions are very close to the acquired land and so the sale deeds are considered as comparable sale deeds in this case.
On the other hand, only one sale transaction referred by the referring claimants reveal that only two gandas of Viti (Tilla) class of land was sold @Rs.5,00,000/- per kani. The per kani rate of this sale transaction appears to be abnormally high and not consistent with the similar class of land as referred by the L.A. Collector. Moreover, distance of the sale transaction referred by the referring-claimant with the acquired land is not proved as no map is filed. However, for ends of justice sale transaction of referring claimants is also considered as comparable sale deed. The average rate of all those sale transactions of both sides for 'Tilla' class of land on calculation comes to Rs.1,38,000/- and accordingly I award compensation for the various class of land on the following rate:
Sl. No
Class of Land
Assessed rate per kani by the
L.A. Collector
Compensation given by the
Court (per kani)
1.
Bastu, Bastu (Tilla)
Rs.3,00,000/-
Rs.4,26,000/-
2.
Bagan(Tilla)/Chara Tilla
Rs. 2,50,000/-
Rs. 3,76,000/-
3.
Nal
Rs.2,00,000/-
Rs. 3,26,000/-
4.
Viti(Nal),Chara(Nal)/Lunga
Rs.1,50,000/-
Rs. 2,76,000/-
5.
Tilla
Rs. 75,000/-
Rs.1,38,000/-
6.
Indara,Road,Layekpatit(Tilla), Path
Rs. 20,000/-
Rs. 40,000/-
[Emphasis added]
It is apparent that though the Land Acquisition Judge has relied on the Sale Deed no. 977 dated 02.02.2002 (Exhibit - 1 series), but he has himself stated that the distance of the sale transaction referred by the referring claimant with the acquired land is not proved as no map is available. However, he has observed further that for ends of justice, the sale transaction as relied by the Referring claimant has also been considered as comparable sale deed. Apart that he has made average of the sale instance, as introduced by the respondent no.2, the Land Acquisition Collector, West Tripura, Agartala [Exhibit A series: 4 Sale Deeds viz. Sale Deed no. 2805 dated 11.04.2003, Sale Deed no. 1-2806 dated 11.04.2003, Sale Deed no. 1-9361 dated 30.10.2002 and Sale Deed no. 1-9379 dated 30.10.2002]. In this appeal the Requiring Department (78 RCC, GREF) has challenged the said judgment and award of the Land Acquisition Judge.
Mr. Majumder, learned CGC has submitted that the finding as returned by the judgment is perverse as there is no evidentiary basis of such finding and the mode that has been adopted by the Land Acquisition Judge is absolutely against the settled position of law. This mode cannot be accepted to determine the market rate on the basis of the average. The relevant factors which are to be taken into consideration for determination of the land value has been settled by the Apex Court in catena of decisions. Those factors are as under:
(i) that the location of the acquired land and the location of the land, as referred in the comparable deed;
(ii) the size of the land;
(iii) potentiality of the land, and
(iv) the index of development including the rate of yearly acceleration.
None of those aspects had been inquired into and assessed by the Land Acquisition Judge though he had initially suggested of such mode. Therefore, this judgment cannot be maintained. Moreover, this court has already decided the appeal from the said common judgment and award in Union of India vs. Gopal Chandra Saha and another [judgment and order dated 06.05.2017 in L.A. Appeal no. 29 of 2013] etc. Mr. Majumder, learned CGC has referred the following passages from the said judgment:
"11. A bare reading of the above finding of the learned L.A. Judge makes it abundantly clear that the learned L.A. Judge did not at all apply his mind to the evidence and materials placed on record and whimsically arrived at a finding increasing the price of the acquired land. No doubt, as already stated hereinbefore, a land loser must be given adequate and proper compensation as per the market rate prevailing at the date of acquisition. But that determination must be on the basis of some evidence brought on record. Some sorts of assumption and presumption and some sorts of hypothesis always takes place while determining compensation but it must be on the basis of some evidence on record. There cannot be even a hypothesis or assumption and presumption in the air. The referring claimants though produced a sale instance showing the price @Rs.5,00,000/- per kani but adduced neither any documentary nor any oral evidence to show that the exemplar deed they relied was of a comparable land. In the absence of any such documentary or oral evidence, the court cannot depend on such a sale instance. The learned L.A. Judge neither relied on that exemplar deed nor refused the exemplar deed. He made an average of the price in the exemplar deeds produced by the referring claimants as well as the L.A. Collector and thereafter he has fixed a price of his own which has no connection with the evidence and materials on record.
As already stated hereinbefore, the burden lies on the referring claimants to prove the case and since in this case I find no cogent evidence to show that the referring claimants were entitled to a higher price than that what was determined by the L.A. Collector, I am of considered opinion that the appeals should be allowed and the judgment and award passed by the learned L.A. Judge should be set aside."
[Emphasis added]
From the other side, Mr. Paul, learned counsel has submitted that the sale exemplar as relied by the Land Acquisition Judge is from the same Mouja and according to him a Mouja is not a very large unit and as such reasonably some inference can be drawn and Rs.5 lakh per kani, therefore, for the tilla class of land can be awarded in favour of the appellant.
This court is not inclined to accept such proposition as advanced by Mr. Pal, learned counsel inasmuch as Mouja is a very big area forming an entire revenue village. Therefore, the location of the land acquired and the location of the land described in the sale exemplar are very important factors for purpose of applying the rate in the sale exempler for having the rate in respect of the acquired land.
It is an admitted position that the claimant-respondent no.1 did not make any endeavour to establish these factors. The Land Acquisition Judge has clearly observed that the distance between the land mentioned in the sale transaction relied by the referring claimant and the acquired land is not proved as no map is filed nor any other evidence in this regard has been introduced. One map showing the adjoining area of acquisition has been filed by the Land Acquisition Collector and this court on scrutiny finds that the land, as described in the said sale exemplar is not located in the map. Therefore, it can safely be presumed that the land was far away land which cannot be, in ordinary course, be compared.
Mr. Gautam, learned counsel has however supported and adopted the submission made by Mr. B. Majumder, learned CGC.
Having appreciated the submissions made by the learned counsel appearing for the parties and scrutinized the records, this court is of the view that the basis of enhancing the rate as adopted by the Land Acquisition Judge is totally untenable and accordingly the same is interfered with. The impugned judgment and award is set aside. The rate as awarded by the Land Acquisition Collector shall be followed for purpose of determining the compensation.
In the result, the appeal stands allowed. Prepare the award accordingly. Send down the LCRs forthwith.