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Judgment
S.C. Das, J.—1. All the four appeals were heard analogously on the prayer of learned counsel of both side and this common judgment is passed which shall govern all the appeals.
By Notification No. F.9(4)-REV/ACQ/II/2008 dated 17.10.2008 issued under Section 4 of the Land Acquisition Act (for short L.A. Act) followed by Declaration of even number dated 12.11.2008, land measuring 0.90 acres at Mouja West Kanchanbari under Kanchanbari Tehsil of Kailashahar was acquired for construction of Water Treatment Plant at Kanchanbari, Kailashahar. Land measuring 0.40 acres, classified as ''Nal'', recorded in Khatian No. 627, Plot No. 4183p in the name of Bhagirath Arya, the appellant of L.A. App. No. 22 of 2012 was acquired. Similarly, under the same Notification land measuring 0.43 acres classified as ''Nal'' recorded in Khatian No. 702, Plot No. 4183/5616 of the same Mouja in the name of Manju Rani Arya (Basak), the appellant of L.A. App. No. 23 of 2012 was also acquired.
It may be mentioned here that Bhagirath Arya and Manju Rani Arya(Basak) are husband and wife respectively and the acquired lands belonged by them were situated side by side.
The L.A. Collector awarded compensation at the rate of Rs. 50,000/- per kani for the ''Nal'' class of land belonged to the appellants, Bhagirath Arya and Manju Rani Arya(Basak)(hereinafter referred as referring claimants).
Both the referring claimants received compensation under protest with a request to refer their case to the L.A. Judge under Section 18 of the L.A. Act and accordingly the reference was made.
The reference in respect of Bhagirath Arya was registered as Case No. Misc. (L.A.) 9 of 2010 before the learned L.A. Judge, North Tripura, Kailashahar and the reference of the claimant Smti. Manju Rani Arya(Basak) was registered as Case No. Misc. (L.A.) 8 of 2010.
The referring claimants in their claim statements submitted before the L.A. Judge claimed compensation towards price of land at the rate of Rs. 20,00,000/- per kani.
The Respondent, L.A. Collector also contested the reference by filing written objection contending that appropriate compensation was awarded after considering of the sale transaction of comparable lands at the date of acquisition and the claimants were not entitled to get any higher price as compensation.
In course of trial the referring claimants examined themselves in their respective cases as PW1 and they relied on four sale instances namely, Sale Deed No. 1-1454, dated 20.09.1993, Sale Deed No. 1-1684, dated 17.06.1992, Sale Deed No. 1-239, dated 25.02.2004 and Sale Deed No. 1-269, dated 23.03.2009 and a map of the relevant plots of the acquired land and the land of sale instance and a valuation certificate issued by office of SDO dated 06.07.2001 and those were marked as Exbt.1 series.
The L.A. Collector also in both the cases examined one witness, namely OPW1 Sri Pradip Biswas, Amin of the office of L.A. Collector and exhibited only one Sale Deed, i.e. sale deed bearing No. 1-675, dated 11.06.2008 and a copy of the valuation chart dated 02.08.2008 and those were marked as Exbt.A series.
Learned L.A. Judge(District Judge), Kailashahar by separate judgments dated 26.11.2011 disposed both the reference cases directing payment of compensation at the rate of Rs. 6,00,000/- per kani.
Aggrieved, the referring claimant, Bhagirath Arya alias Bhagirath Chandra Arya filed L.A. App. No. 21 of 2012 and Smti. Manju Rani Arya(Basak) filed L.A. Appeal No. 23 of 2012 challenging the respective judgments in Case No. Misc. (LA) 9 of 2010 and Misc. (LA) 8 of 2010 respectively. The requiring Department also challenged the judgments by filing L.A. App. No. 81 of 2012 challenging judgment in Misc. (LA) 9 of 2010 and L.A. App. No. 80 of 2012 challenging judgment in Misc. (LA) 8 of 2010.
It is submitted by learned counsel of both side that learned L.A. Judge neither considered the sale instances proved by the claimants nor considered the sale instances proved by the L.A. Collector but has passed the judgment taking into consideration a Sale Deed No. 105 which was not exhibited by either of the parties. It is also submitted by learned counsel of both sides that the judgment passed by the learned L.A. Judge cannot be termed as a judgment in the eye of law since he has discussed nothing and only in one para decided the reference case.
It is really quite unfortunate that a senior officer in the post of District Judge entrusted with the power of L.A. Judge has passed such a cryptic judgment even without discussing the material evidence on record adduced by both side. The learned L.A. Judge is therefore cautioned for future.
It is a settled position of law that the best method to determine the market price of land at the date of acquisition is to consider the prices obtained by contemporaneous sale deeds whether of the same land or of lands in the vicinity. Various factors may be taken into consideration, namely, the size and shape of land, the class and quality of land, the locality and its situation, the tenure of the property, the user, the potential value and the rise or depreciation of the valuation of the land in the locality. Where sale instances of comparable lands are available on record, the Court can safely take it into consideration and make the award relying on such exemplars. It is a settled law that example of sale transaction of small plot of land cannot be accepted as sale instance for a bigger plot of land but such sale transaction can be considered after giving a reasonable deduction therefrom. It is also a settled law that where there are several exemplars with reference to similar lands, the highest exemplar should be taken into consideration to determine compensation.
From the evidence of PWs, as already stated hereinbefore, as I find in para 5 of the examination-in-chief submitted by affidavit, five sale deeds were mentioned but at the time of exhibiting the documents only four sale deeds were exhibited mentioned in Sl. Nos. 1, 2, 4 and 5. Learned counsel, Mr. Biswas appearing for the referring claimants submitted that Sale Deed No. 1-269 dated 23.05.2009 since was a sale instance after the date of acquisition, the referring claimants do not insist that sale instance for consideration and prayed for keeping it outside consideration. Accordingly, that sale deed is kept out of consideration. The other three sale instances as mentioned in Sl. Nos. 1, 2 and 4 carry the price per kani as follows:
It is submitted by Mr. Biswas, learned counsel that the referring claimants claimed compensation at the rate of Rs. 20,00,000/- per kani and that is most reasonable in view the sale instances of the years 1992, 1993 and 2004. Learned L.A. Judge by not considering those sale instances has committed great injustice to the referring claimants.
On the other hand learned counsel, Mr. Dutta appearing for the appellants of LA App. No. 80 of 2012 and LA App. No. 81 of 2012 submitted that the judgment passed by the L.A. Judge cannot sustain since it is based on no evidence adduced by the parties. He has further submitted that the three sale instances of the years, 1992, 1993 and 2004 on which the referring claimants relied are all long before the date of acquisition and so the prices obtained in those sale instances cannot be considered as a price of comparable land at the date of acquisition, more particularly, those were of very small pieces of land meant for ''dokan viti'', etc. and therefore those sale instances cannot be taken to consideration for determination of market price.
Normally, sale transactions are held after vigorous bargain between the seller and purchaser. When such a genuine transaction is found to have held it may be taken safely as an instance of reasonable price but it must be found that such sale transaction is of a comparable land. It is, however, a very difficult task. Some sort of guess work, assumption and presumption always takes place in determining the market price of an acquired land. Since the land loser had no opportunity to bargain the evidence led by him deserved to be considered carefully.
The Supreme Court in the case of Chimanlal Hargovinddas v. Special Land Acquisition Officer, Poona & Anr., reported in , (1988) 3 SCC 751, in para 4 of the judgment has observed:
"4. The following factors must be etched on the mental screen:
(1) A reference under Section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition Officer in his Award unless the same material is produced and proved before the Court.
(2) So also the Award of the Land Acquisition Officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the Court hearing the Reference. It is merely an offer made by the Land Acquisition Officer and the material utilised by him for making his valuation cannot be utilised by the Court unless produced and proved before it. It is not the function of the Court to suit in appeal against the award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an appellate Court.
(3) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it.
(4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose.
(5) The market value of land under acquisition has to be determined as on the crucial date of publication of the notification under Section 4 of the Land Acquisition Act(dates of Notifications under Sections. 6 and 9 are irrelevant).
(6) The determination has to be made standing on the date line of valuation (date of publication of notification under Section 4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price.
(7) In doing so by the instances method, the Court has to correlate the market value reflected in the most comparable instance which provides the index of market value.
(8) Only genuine instances have to be taken into account. (Sometimes instances are rigged up in anticipation of acquisition of land).
(9) Even post notification instances can be taken into account (1) if they are very proximate, (2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects.
(10) The most comparable instances out of the genuine instances have to be identified on the following considerations:
(i) proximity from time angle,
(ii) proximity from situation angle.
(11) Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-�-vis land under acquisition by placing the two in juxtaposition.
(12) A balance-sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchaser would do.
(13) The market value of the land under acquisition has thereafter to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors.
(14) The exercise indicated in Clauses (11) to (13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors:
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. The principle may be applied here in this case subject to a reasonable deduction. In para 15 of the judgment the Apex Court observed--
"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."
The claimants in their depositions submitted by affidavits before the L.A. Judge have stated that the acquired land was situated adjacent to the PWD road and electric light and water supply facilities were available there and the land was of high potential value since within the area there were Kanchanbari market, Agriculture office, Animal Treatment Hospital, Panchayat office, Community Hall, DWS quarters, English Medium school, etc. were all situated.
This assertion of the referring claimants that the acquired lands were of potential value and situated by the side of the road has not been disputed by the respondents at the time of cross-examination of the claimants. In his evidence OPW1 Pradip Biswas has stated that the L.A. Collector assessed the compensation taking into account the land valuation chart as well as the sale instance. It is also stated that the surrounding area of the acquired land was not thickly populated and no good facilities of habitation exist there. There was no commercial advantage of the land and so compensation at the rate of Rs. 50,000/- per kani was adequate compensation. The referring claimants at the time of cross-examination of OPW1 also did not challenge the above assertion made by OPW1.
The referring claimants stated nothing as to at what distance the market and other establishments were situated from the acquired land. The potential value will be considered only in the event there is cogent evidence about the locational and other advantage of the acquired land. In the evidence of PWs, i.e. the referring claimants except mentioning of those Government establishments there is nothing to show as to at what distance those were situated and how the acquired land may be potential in future. The oral evidence is very cryptic from the side of the referring claimants as well as the L.A. Collector.
Let us now look into the sale instances relied by the referring claimants. As already stated hereinbefore, the referring claimants exhibited in total four sale deeds and out of them Sale Deed No. 1-269 dated 23.05.2009 is a deed executed about one year after the notification under Section 4 for the acquisition of land was made. Learned counsel, Mr. Biswas prayed for keeping that sale instance outside consideration and I think it is a fair submission since it was a sale instance after the date of notification under Section 4 and since there are sale instances before the date of notification so the sale instance after the date of notification may be excluded and accordingly I keep it outside consideration.
Sale Deed No. 1-1684 carries valuation about Rs. 19,50,000/- per kani. Sale Deed No. 1-1454 carries valuation of about Rs. 20,00,000/- per kani. Sale Deed No. 1-239 carries valuation of about Rs. 60,00,000/- per kani. On perusal of those Sale Deed Nos. 1-1454, 1-1684 and 1-239 I find that all those sales were transacted for very small pieces of land arising out of same plot of land i.e. Plot No. 2910 of Mouja Kanchanbari. The sellers of Sale Deed No. 1-1454 and Sale Deed No. 1-1684 were full-blood brothers and the seller of Sale Deed No. 1-239 was a different person (not brother of the other sellers) but it appears that all those sales were relating to an identical plot of land and in the exhibited map I find that plot number a little bit away from the acquired land. In Sale Deed No. 1-1454 the classification of land has not been mentioned but in Sale Deed No. 1-1684 and Sale Deed No. 239 it is clearly mentioned that those were ''dokan viti''(shop class of land). So it is apparent that very small pieces of land were transacted under those three sale instances and it is apparent that all those three sale instances were of ''dokan viti''(shop class of land). Therefore, those cannot be apparently considered as a sale instance of comparable land.
The sale instance proved by the L.A. Collector, i.e. Sale Deed No. 1-675 was of a big area of 0.82 acres of land and that carries a price of Rs. 48,780/- per kani, say Rs. 50,000/- per kani and that sale transaction was dated 11.06.2008 i.e. about four months before the notification made under Section 4 of the L.A. Act. The respondents produced no map to show the location of the land transacted under that sale deed. However, it appears that it is of same mouja and it was of ''vastu'' class of land. So this sale instance also cannot apparently be taken to consideration as a deed for comparable land for determination of the market price of the acquired land in straightway.
The referring claimants in their claim statements as well as in their evidence claimed compensation at the rate of Rs. 20,00,000/- per kani and thereby it may be presumed that they have relied on the Sale Deed No. 1-1454. Since they did not claim compensation at the rate of Rs. 60,00,000/- per kani which is reflected in Sale Deed No. 1-239 I find no reason at all to take that sale instance into consideration as well as to take into consideration the transaction under Sale Deed No. 1-1684.
Sale Deed No. 1-1454 proved by the referring claimants is of the year 1993. The referring claimants adduced no evidence at all in respect of increase and/or decrease of the price under that sale instance. The acquisition was made in the year 2008, i.e. almost after fifteen years of that sale instance. As already stated earlier it was of ''dokan viti'' class of land and the general trend of the market of such class of land is in the increase but what was the percentage of increase that has to be stated by the referring claimants to give any addition to the price obtained by the exemplar. In the absence of any such evidence adduced by the referring claimants the Court cannot apply guess-work even.
The respondents proved Sale Deed No. 1-675 of the year 2008 and that was a transaction of the year of acquisition, a few months before the notification under Section 4 was made. It was of a big plot of land and ''vastu'' class of land. The acquired land is ''Nal'' class of land. The assessment note of the L.A. Collector shows that the land of that exemplar Deed No. 1-675 was about 624 meters away from the acquired land. No map has been produced to show the location. The acquired land is situated by the side of the main road and not far away from the market. The map produced by the referring claimants shows that the acquired land and the exemplar deed proved by the referring claimants were intervened by a few plots of land. The distance has not been stated.
Both sides also proved land valuation charts but all those land valuation charts also cannot be taken to consideration for determination of the market price of the acquired land since it is not clear as to under what circumstances and as to for what purpose those charts were issued.
In my considered opinion since no sale deed of ''Nal'' class of land produced by either side, the price obtained in Sale Deed No. 1-1454 proved by the referring claimants and the price obtained in Sale Deed No. 1-675 proved by the respondents may be taken together for consideration as a guiding factor to determine the market price of the acquired land.
In the given facts and circumstances and the evidence on record of the cases there is no other alternative but to apply guess-work and to some sorts of assumption and presumption.
Since the exemplar deed proved by the referring claimants is of ''dokan viti'' class of land and it appears to be situated inside the market there must be some deduction from the price obtained in that deed. The exemplar deed gives a price of Rs. 20,00,000/- per kani. In my considered opinion since the exemplar deed is of a very small piece of land and it is within market area, we may straightway deduct at least 40 percent of the price obtained under that sale instance and the amount stands at Rs. 12,00,000/- per kani.
The exemplar deed proved by the respondents is of ''vastu'' class of land and the location is not proved by proving any map. However, we may take the price obtained under that deed also for making an average and to arrive at a decision. As already stated earlier that exemplar deed gives up a price of Rs. 50,000/- per kani. So the total amount from both the deeds which may be taken for making an average stands at Rs. 12,00,000/- + Rs. 50,000/- = Rs. 12,50,000/- per kani. Let us now make an average of the two and the amount stands at Rs. 12,50,000/- � 2 = Rs. 6,25,000/- per kani. In the peculiar facts and circumstances and the evidence on record in my considered opinion fixing a compensation at the rate of Rs. 6,25,000/- (rupees six lakhs twenty five thousand) per kani of the acquired land may be appropriate compensation.
Accordingly, it is hereby ordered that the referring claimants were entitled to get compensation of the acquired land at the rate of Rs. 6,25,000/- (rupees six lakhs twenty five thousand) per kani and further they are entitled to get solatium and interest as prescribed under the Land Acquisition Act from the date of taking over of possession of the acquired land. The judgment dated 26.11.2011 and award dated 30.11.2011 passed in Misc. (LA) 9 of 2010 and Misc. (LA) 8 of 2010 passed by learned L.A. Judge, Kailashahar, North Tripura are set aside. All the appeals are accordingly stand disposed of.
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