State of West Bengal vs Anil Kumar Ghosh

Altamas Kabir, J.—These two appeals u/s 54 of the Land Acquisition Act, 1894, hereinafter referred to as the ''1894 Act'', and the two cross-objections filed therein, were taken up for hearing together as they arise but of a common judgment dated November 1, 1990, by which the learned Special L.A. Judge, First Court, Alipore, disposed of L.R.A. Case Nos. 18 and 19 of 1990(V).

The Referring Claimant, who is the Respondent in these appeals and the Cross Objector in the two Cross Objections, was at all material times the sole owner of R.S. plot Nos. 2382 and 2374, pertaining to Khatian No. 522 of mouza-Kasba, P.S. Kasba District 24-Par-ganas (South), measuring 83 decimals and 39 decimals respectively, which were Sali in nature and were acquired for the East Calcutta Area Development Project. The Land Acquisition Collector awarded compensation at the rate of Rs. 1,534.00 per cottah.

By his judgment dated November 1, 1990, the learned Special L.A. Judge, 1st Court, Alipore, allowed the two reference cases, being L.R.A. Case Nos. 18 and 19 of 1990(V), and passed the following order:

ORDERED

that the L.R.A. Case Nos. 18 of 1990(V) and L.R.A. No. 19 of 1990(V) are allowed in part on contest without any cost. Referring claimant are entitled to valuation of the Sali Land @ Rs. 8,700.00 per cottah. Referring claimant also entitled S.A. @ 30 % on the entire market value less already paid by the learned Collector. Referring claimants are entitled to Rental Compensation per annum from May 15, 1978 till November 28, 1983. Referring claimant also entitled to interest on the enhanced amount of compensation @ 9% per annum from November 29, 1983 to November 29, 1984 and thereafter @ 15% from November 29, 1984 till payment as per amended Section 28 of Act, 1894. State of West Bengal is given two months time to deposit the decretal dues in court.

These two appeals have been filed by the State of West Bengal against the judgment and decree dated November 1, 1990, of the learned Special Land Acquisition Judge in L.R.A. Nos. 18 and 19 of 1990(V) and the two cross objections in connection therewith have been filed by the Referring Claimant.

On behalf of the State of West Bengal it was urged by Mr. Soumen Dasgupta that the valuation of the acquired lands had been correctly assessed by the Lands Acquisition Collector and the learned Special L.A. Judge had erred in enhancing the same. It was also contended that the lands in question had not been converted into homestead and no improvements had also been made thereupon. Furthermore, the lands were land-locked and did not open out into any public road or pathway. There value would, therefore, have to be assessed in keeping with its location and character.

It was submitted that in the facts of this case the land value could not exceed what had been assessed by the Land Acquisition Collector.

It was also contended that the learned Special Land Acquisition Judge had not correctly assessed the evidence adduced by the parties and had, therefore, arbitrarily enhanced the valuation of the lands from Rs. 1534.00 per cottah to Rs. 8,700.00 per cottah.

Appearing for the Referring Claimant/Cross Objector, Mr. Amar Nath Banerjee submitted that, although, in the Cross Objection the Cross Objector had claimed that the learned Special Land Acquisition Judge should have enhanced the land value to atleast Rs. 25,000.00 per cottah, the valuation would, in fact, be much more in the light of certain materials which were discovered after the learned Judge had disposed of the reference cases. Mr. Banerjee submitted that applications had been made on behalf of the Cross Objector under Order 41 Rule 27 of the CPC for bringing on record such additional evidence and supplementary Paper Books had also been prepared and filed on behalf of the Cross Objector.

Mr. Banerjee submitted that both the Collector, as also the Special Land Acquisition Judge, had proceeded on the basis that the plots in question were land-locked, although, that was not so and as a result the lands were valued at a much lower price than their actual value. Referring to the evidence of P.W. 1, Nripendra Kumar Chakraborty, an Engineer Valuer who had been an Assistant Engineer, P.W.D., Mr. Banerjee submitted that the said witness had visited the acquired plots on March 20, 1984, and had arrived at the definite finding that the acquired lands were not land-locked.

Mr. Banerjee also referred to the evidence of P.W. 2, Shri Nripendra Nath Ghose, a resident of 41, Bose Pukur Road, Kasba, situated near the acquired plots. Mr. Banerjee pointed out from his evidence that both the plots had access from a Public Road situated on the Bund on the northern side of the said plots. The witness also submitted that the acquired plots belonging to Shri Anil Kumar Ghosh were within 3/4 minutes walking distance from the area falling within the Calcutta Municipality.

Mr. Banerjee urged that in his deposition Shri Anil Kumar Ghosh had mentioned that both the acquired plots had access from a public road abutting the plots on the north. The Respondent had also deposed that the bund abutting the two plots to the north were in existence since 1961/62 and that the said bund was 11 feet wide and the road in question was a brick-soled road.

Mr. Banerjee then referred to the evidence of Sri. Niharendu Pal who had been examined on behalf of the State of West Bengal. Mr. Banerjee pointed out from his examination-in-chief that, although, he had deposed that there was no road or bund, he had admitted that there was a khal (canal) by the side of the acquired plots, being plot Nos. 2374 and 2382, and that there was a pathway on the northern side of plot 2381. Mr. Banerjee pointed out that the said witness had also deposed that since the two acquired plots were land-locked, he had valued then at 1/3 the valuation of danga land, which according to him is the sali land date.

Referring to a sketch map of the area, Mr. Banerjee submitted that the acquired plots were within one kilometre of Ballygunge Railway Station and Bijon Setu and as had been indicated by P.W. 1, Sri. Nipendra Kumar Chakraborty, in his report which had been made an exhibit, the said plots are situated alongside a 10 feet wide Public Road which is connected with Bose Pukur Road under Calcutta Municipal Corporation. In comparison to the said two plots, another plot, being No. 4202, which was about three kilometres away from Bijon Setu and was also land-locked, had been valued at Rs. 20,000.00 per cottah as per a judgment of this Court in F.A. No. 243 of 1991 along with C.O.T. No. 2579 of 1991. Mr. Banerjee submitted that a SLP filed by the State of West Bengal against the said judgment was dismissed by the Hon''ble Supreme Court.

Mr. Banerjee also urged that a plot of land, being No. 4256, which was across the Eastern Metropolitan Bypass had been mortgaged in favour of United Bank of India by M/s. Friends Engineering Company at the rate of Rs. 22,500.00 per cottah in June, 1982. It was urged that the said land is similarly situated and possessing similar advantage in the acquired plots in this case.

In addition to the above, the West Bengal Small industries Corporation Ltd. had in December, 1991, leased out similarly situated lands as the acquired plots, at the rate of Rs. 60,000.00 per cottah.

It was urged that the lands which had been acquired had better advantage for future development than those-referred to hereinabove and yet the same had-been valued at a rate which was lower than the said lands.

Mr. Banerjee than submitted that by a judgment and decree dated February 29, 1992, the Special Land Acquisition Judge, Alipore, had in L.R.A. Case No. 192 of 1989(V) allowed compensation at the rate of Rs. 30,000.00 per cottah for plot No. 188 being solid land and at the rate of Rs. 15,000.00 per cottah for plot No. 180, which was a tank, situated at mouza-Kasba within the district of South 24-Parganas.

Reference was also made to certain lands sold by the C.M.D.A. on the Eastern Metropolitan Bye Pass at the rate of Rs. 2,66,600.00 per cottah.

Referring to ''Parks on Valuation'' Mr. Banerjee submitted that the learned Author had observed that when a land becomes fully land-locked its, value becomes 1/4 the value of the surrounding lands. Mr. Banerjee submitted that if the basis of the valuation is taken to be that as indicated by Parks, then also the valuation of the acquired lands would be approximately Rs. 35,000.00 per cottah since the same had been found to open out on to a 10 feet wide brick-soled public road.

Reference was also made to ''Valuation of Immovable Properties'' by M.N. Dange, wherein the value of land-locked lands was taken to be 20 % of the value of the lands on the main road.

In support of his submission that pursuant to a judgment of this. Court plot No. 4202 had been valued at Rs. 20,000.00 per cottah, Mr. Banerjee relied upon the decision of the Hon''ble Supreme Court in the case of Pal Singh and others Vs. Union Territory of Chandigarh, wherein it was held that a previous judgment could be cited as evidence to determine the marked value of a plot of land which had been acquired.

Reference was also made to a Full Bench decision of the Karnataka High Court in the case of Special Land Acquisition Officer (NHW) Dharwad v. Kallangenda and Ors. AIR 1994 Kar. 112 where the same sentiments were expressed and it was also observed that a claimant is free to make higher claim than had been made before.

Reference was then made to another decision of the Hon''ble Supreme Court in Nand Ram and Ors. v. State of Haryana 1989 (Vo. Ill) A.I.l.A and Compen. Cases 1 in which it was observed that the State could not refuse to pay similar compensation to landowners whose lands were similarly situated and were acquired under the same notification for the same public purpose. Mr. Banerjee urged that all the lands in and around the area where the acquired plots were, situated, and which have been referred to hereinabove as comparable units, were acquired for the East Calcutta Area Development Project and were thus acquired for a common purpose.

Mr. Banerjee submitted that in view of the valuation of the plots being sold by the West Bengal Small Industries Corporation, the valuation of the acquired plots as on November 29, 1993, should be assessed at least at the rate of Rs. 60,000.00 per cottah.

A submission was also made that the Cross Objector was also entitled to the benefit of Section 23(1A) of the Land Acquisition Act, 1894, as had been allowed by the Special Land Acquisition Judge at Alipore by his judgment dated January 24, 1994, in L.R.A. case No. 396 of 1993(V), against which no appeal had been preferred by the State of West Bengal and payment had been duly made in terms of the said judgment. Mr. Banerjee submitted that the same benefit had been allowed by the Special Land Acquisition Judge, 1st Court, Alipore, in L.R.A. Case No. 113 of 1994(V) against which also no appeal had been preferred by the State of West Bengal.

Mr. Banerjee lastly referred to an order passed by this Court in Civil Order No. 92 (W) of 1989 on January 10, 1989, directing the State of West Bengal to pay additional compensation u/s 23(1A) of the 1894 Act in respect of property acquired under the provisions of the West Bengal Land (Regulation and Acquisition) Act, 1948, hereinafter referred to as Act II of 1948. Mr. Banerjee urged that having regard to the aforesaid decisions, the Cross Objector was also entitled to receive additional compensation at the rate of 12% per annum on the entire market value of the acquired land from the date of notification u/s 4(1a) of Act II of 1948 till the date of the award.

Mr. Banerjee submitted that during the pendency of these appeals in this Court by Notification No. 2226-L dated October 8, 1996, the West Bengal Land (Requisition and Acquisition) (Amendment) Act, 1996, was published in the Calcutta Gazette Extraordinary on October 8, 1996, whereby the benefit of Section 23(1A) of the 1894 Act was extended to the owners of land where lands had been acquired under Act II of 1948, which also applied to the case of the Cross Objector.

Reference was made to the decision of the Hon''ble Court in the case of U.P. Avas Evam Vikas Parishad v. Jainul Islam and am. AIR I998 S.C. 1028 wherein it was held that the amendments introduced in the 1894 Act relating to determination of payment of compensation, namely, Section 23(1A) and Sections 23(2) and 28, would be applicable to acquisitions for the purposes of U.P. Avas Evam Vikas Parishad Adhiniyam, 1966.

Mr. Banerjee submitted that the said decision would also apply in principle to the amendments affected to the West Bengal Land (Requisition and Acquisition) (Amendment) Act, 1996.

Mr Banerjee urged that the Gross Objector would also be entitled to solatium at the rate of 30 % in respect of the entire market value as might be assessed by this Court. In addition, the Cross Objector would also be entitled to interest on the enhanced amount of compensation in respect of the market value of the acquired lands, including solatium u/s 23(2) and additional amount u/s 23(1A) of the 1894 Act, calculated at the rate of 9% per annum for one year from the date of possession and thereafter at the rate of 15% till payment of the award money.

Mr. Banerjee submitted that in F.A. No. 59 of 1994, (State of West Bengal v, Bajrang Lal Rajgharia and Anr.), heard along with C.O.T. No. 3429 of 1990, a Division Bench of this Court by its judgment dated September 10, 1998, had on consideration of different decisions of the Hon''ble Supreme Court, held that interest on solatium had been rightly awarded by the learned court below.

Mr. Banerjee urged that the finding of the learned court below that there is no bund or pathway on the northern side of the plots is perverse and contrary to the evidence on record and this had resulted in the erroneous assessment of the market value of the acquired plots on the date of the notification u/s 4(1a) of Act II of 1948.

Having considered, the submissions made on behalf of the respective parties we have no hesitation in holding that the benefits of Section 23(1A) of the 1894 Act will also be available in respect of lands acquired under Act II of 1948, although, the said proposition had not been seriously opposed on behalf of the Appellant State. Sections 7 and 8 of the Act II of 1948 make it clear that the; provisions of Act I of 1894 relating to compensation will have application to lands acquired under Act II of 1948. With the incorporation of Sub-section (1A) in Section 23 of Act I of 1894, in 1984, the same would also apply in respect of reference made u/s 8 of Act II of 1948. The Cross Objector will, therefore, be also entitled to the said benefit in respect of the acquired plots with effect from the date of publication of notice u/s 4(1a) of Act II of 1948.

As to the assessment of the market value of the acquired plots by the Collector and the learned court below, respectively, it is apparent from the order of the learned court below that such valuation was done on the basis of its finding that the plots in question are landlocked. Having regard to the principles of valuation of land-locked properties, the valuation as arrived at by the learned court below is in consonance with such principles, if the claim of the Cross Objector that the market value of the acquired lands should be Rs. 25,000.00 per cottah is to be accepted.

However, it has been contended on behalf of the Cross Objector that the lands in question are not landlocked. While the learned Court below has proceeded on the basis of the evidence of Shri Niharendu Pal examined on behalf of the State, the evidence of the witnesses examined on behalf of the Respondent/Cross Objector is otherwise. P.W. 1, Shri Nripendra Kumar Chakraborty, an Engineer valuer, has deposed that he had visited the acquired plots and that there is a canal side road on the north of the said plots. In cross-examination Shri Chakraborty has stated that the acquired plots are not land-locked. P.W. 2, Shri Nripendra Nath Ghose, has also deposed that there is a road on the northern side of both the plots. On the other hand, Shri Niharendu Pal, O.P.W. 1, has deposed that although there is a khal by the side of the acquired plots he could not say as, to whether any bund is required to be kept by the side of khal or canal. Such a statement does not inspire confidence and, in our view, amounts to prevarication.

We are, therefore, inclined to hold that even if there is no regular pathway bordering the acquired plots of land to the north, the said plots are not Completely land-locked and are accessible from the pathway on the bund to the north thereof and their market value as on the date of the notification u/s 4(1) of Act I of 1894 would have to be assessed on such basis.

Taking plot Nos. 4202 and 4256, referred to by Mr. Banerjee as comparable units, we are of the view that the claim of the Cross Objector that the acquired plots should be valued at Rs. 25,000.00 per cottah appears to be justified. The acquired plots are sali in character and there is no evidence to show that any improvement has been effected thereon so as to make them situable for residential purposes, though there is scope for future development. The plots sold by the C.M.D.A. and those leased by the West Bengal Small Industries Corporation Ltd. cannot, therefore, be taken as comparable units in relation to the acquired plots. We are unable to agree with the submissions made by Mr. Dasgupta on behalf of the State that the learned Court below had erred in enhancing the market value of the acquired plots as assessed and awarded by the Collector.

Keeping in mind the principles of valuation as explained by Parks, we hold that the marker value of the acquired plots on the date of publication of the notice of acquisition u/s 4(1a) of Act II of 1948 should be assessed at Rs. 25,000.00 per cottah, as claimed by the Cross Objector since the same are not completely land-locked.

We also respectfully agree with the views expressed by the Division Bench in F.A. No. 59 of 1994 with C.O.T. No. 3429 of 1994 (State of West Bengal v. Bajrang Lal Rajgharia and Anr.) regarding payment of interest on solatium. We also agree that Section 23 as a whole speaks of compensation and that all the amounts payable u/s 23, including the amount payable under Sub-section (1-A) and (2) thereof would constitute compensation, and interest would, therefore, be payable on the entire amount of compensation.

We, accordingly, dispose of the appeals and the Cross objections by modifying the judgments and decrees of the learned could below as follows:

The market value of the acquired plots as on the date of the notification u/s 4(1 a) of Act II of 1948 is assessed at Rs. 25,000.00 per cottah instead of Rs. 8,700.00 per cottah assessed by the learned court below.

The Cross Objector will be entitled to the benefit of Section 23(1A) and be entitled to an additional amount on the entire market value of the acquired plot at the rate of 12% from the date of publication of the notification u/s 3(1a) of Act II of 1948 till the date of the award.

The Cross Objector will be entitled to interest on the enhanced amount of compensation on account of market value of the acquired plots, including solatium u/s 23(2) and the additional amount u/s 23(1A) of Act I of 1894, and recurring compensation for the period from May 15, 1978 to November 29, 1983 calculated at the rate of 9% per annum for one year from the date of possession and, thereafter, at the rate of 15% per annum till payment of the award money, subject to deduction of the amounts already paid.

The State of West Bengal will deposit the balance amounts in terms of this judgment with the Land Acquisition Collector, 24-Parganas (South) at Alipore, within a month from date and the cross objector will be entitled to withdraw the same upon execution of the decrees in respect thereof.

The Cross Objector will stand released from the Bank Guarantee furnished by him in respect of the decrial amount withdrawn by him.

There will be no order as to costs.

This judgment will also govern F.A. No. 178 of 1996 preferred by Shri Anil Kumar Ghosh and Ors. and F.A. No. 292 of 1997 filed by the State of West Bengal in respect of the judgment and decree passed by the learned Special Land Acquisition Judge-in-charge, 4th Court, Alipore in L.R.A. case No. 29 of 1990(V) in respect of C.S. Plot Nos. 2318, 2331 and 2488 (Sali) in mouza-Kasba, District 24-Parganas (South), since the said plots are similarly situated as the plots involved in these appeals, namely, F.A. Nos. 186 and 187 of 1993. The judgment and decree passed in L.R.A. case No. 29 of 1990(V) shall also stand modified in the same manner as indicated hereinabove in these appeals.

The Appellants in F.A. No. 178 of 1996 shall also stand released in respect of the security given by them for withdrawal of 50 % of the decrial amount. The Land Acquisition Collector shall return to the Appellants the Title Deeds deposited with him on account of such security.

There will be no order as to costs in these appeals also

If an urgent xerox certified copy of this judgment is applied for, the same is to be provided to the applicant expeditiously, subject to compliance with all the required formalities.

Re.: CAN. No. 7950 of 2000

This application has been filed for clarification of the judgment delivered by us on August 9, 2000. wherein, while disposing of the appeals, we have indicated that the Cross Objector will be entitled to interest on the enhanced amount of compensation on account of market value of the acquired plots including solarium.

It has now been pointed out that in far the recurring compensation and solatium had not been indicated in the said paragraph.

We, accordingly, clarify the judgment delivered on August 9, 2000 by indicating that apart from the interest, for the period as indicated/ the Cross Objector will be entitled to recurring compensation for the period mentioned and also solarium at the rate of 30 % (thirty per cent) on the enhanced market value upon assessment of rates already made.

This application is disposed of. This order will also govern F.A. 187 of 1993 and C.A.N No. 7951 of 2000.

It is ordered and decreed that the appeal as also Cross Objection be and the same is disposed of by modifying the judgment and decree of the Court below to the extent:

The market value of the acquired plots as on the date of the Notification u/s 4(1a) of Act II of 1948 is assessed at Rs. 25,000.00 per cottah instead of Rs. 8,700.00 per cottah assessed by the Court below.

The Cross Objector will be entitled to the benefit of Section 23(1A) and be entitled to an additional amount on the entire market value of the acquired plots at the rate of 12% from the date of publication of the Notification u/s 4(1a) of Act II of 1948 till the date of the award.

The Cross-Objector will be entitled to recurring compensation for the period mentioned and also solarium at the rate of 30% (thirty percent) on the enhanced market value upon assessment of rates already made.

The Cross-Objector will be entitled to interest on the enhanced amount of compensation on account of market value of the acquired plots, including solarium u/s 23(2) and the additional amount u/s 23(1A) of Act I of 1894 and recurring compensation for the period from May 15, 1978 to November 29, 1983 calculated at the rate of 9 % per annum for one year from the date of possession and thereafter, at the rate of 15% per annum till payment of the award money, subject to deduction of the amounts already paid.

It is further ordered and decreed that the State of West Bengal deposit the balance amounts in terms of this judgment with the Land Acquisition Collector, 24-Parganas (South) at Alipore, within a month from date and the Cross-Objector will be entitled to withdraw the same upon execution of the decree in respect thereof.

It is further ordered and decreed that the Cross-Objector will stand released from the Bank Guarantee furnished by him in respect of the decrial amount withdrawn by him.

Ranjan Kumar Mazumdar, J.

I agree.