Sri Uttam Majumder, v. The Deputy Chief Engineer (Construction) and Anr

Judgment & order

Whether fit for reporting :

HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA JUDGMENT & ORDER

A land area of 1.97 acre (of class chara and tilla) under plot Nos.5636/6349/p and 5636/6350/p of Mouja Sarasima, South Tripura was acquired vide notification No.9(05)-REV/ACQ/XII/2012 dated 15.03.2012 by the Government for construction of a new railway line from Agartala to Sabroom. [2] The LA Collector collected certain sale deeds to determine the compensation but ultimately discarded all those

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deeds on the ground that location of those lands were not nearer to the acquired land and ultimately basing on the valuation chart, as maintained by the Government, assessed the valuation of the acquired land @Rs.4,00,000/- per kani. An amount of Rs.3,22,400/- was also awarded by him as value of 403 numbers of rubber trees and further Rs.1000/- for 5 nos. of mango trees, Rs.120/- for one karai tree, Rs.450/- for one Garjan tree and Rs.150/- for 2 nos. of Teak tree totalling Rs.3,24,120/-. [3] The appellant insisted for reference under Section 18 of the LA Act before the LA Court and accordingly, after hearing, the LA Judge awarded compensation @Rs.6,00,000/- per kani. The appellant was also allowed to receive compensation for 403 numbers of rubber trees @Rs.8,500/- for each tree, Rs.1,000/- for one koroi tree, Rs.1000/- for one garjan tree of diameter 2 inches and further Rs.1,000/- for two numbers of garjan trees of diameter 1 inch, Rs.1,500/- for five numbers of mango saplings and Rs.300/- for two numbers of teak saplings, totalling Rs.34,30,300/-. [4] This Court earlier in this appeal decided compensation for land @Rs.10,00,000/- per kani and the cost of each rubber tree @Rs.10,000/-. Value of other trees as assessed by the LA Judge was, however, kept unaltered. [5] The appellant, thereafter, preferred Civil Appeal No.6280 of 2023 with SLP(C) No.15550 of 2022 and finally, the Hon'ble Supreme Court vide order dated 27.09.2023 remanded the matter for fresh determination of market value of the acquired land

keeping in view of the exemplars relied upon by the appellant before the Land Acquisition Collector/Reference Court. The relevant portion of observations of the Hon'ble Supreme Court is extracted herein below: "12. It appears to us that the High Court ought not to have determined the compensation only on the basis of one sale instance or the amount claimed by the appellants in their reference under Section 18 of the Act. All that the High Court was required to do was to consider the sale instances and then determine as to whether all the sale instances or any one of them is comparable with the acquired land for the purpose of assessing the fair and just market value of the acquired land.

¶13For the reasons aforestated, the appeals are allowed in part, the impugned judgments dated

16.07.2021 and 07.07.2021 are set aside and the matters are remanded to the High Court for a fresh determination of the market value of the acquired land of the appellants keeping in view the exemplars relied upon by them before the Land Acquisition Collector/Reference Court.

¶14It goes without saying that the High Court will not reduce the compensation already awarded to the appellants at the rate of Rs.10,00,000/- per kani.

¶15We request the High Court to re-determine the rate of compensation within a period of four months from the date of appearance of the parties before the High Court.

¶16It is clarified that we have not expressed any opinion on the merits of the appellant's claim.

¶17As a result, the pending interlocutory applications also stand disposed of."

[6] On remand, after reopening the hearing of the case, the claimant adduced one additional evidence i.e. report dated

27.11.2023 issued by the Executive Engineer, Belonia Division, PWD(R&B), Belonia, South Tripura along with a hard copy of one google map showing aerial distance of the acquired plot with some other plots (marked as Exbt.4/1 and Exbt.4/2 respectively). The Executive Engineer, Belonia Division, PWD(R&B), Belonia, South Tripura was also examined as PW-2 but his status would be PW-4.

Registry is to make necessary correction(s) in his evidence sheet in this regard. [7] During hearing, Mr. J. Rajesh, learned counsel argued that the appellant took possession of the acquired land from one Shanti Dutta and his wife, Sukla Dutta, for 99 years vide Lease Deed No.1-2055 dated 18.11.2002 (Exbt.1 series) and developed the land by planting rubber trees therein against huge costing and when the expected time for tapping such rubber came, the land was acquired to the utter deprivation of the appellant. According to him, the LA Collector did not prove any sale exemplar to contradict the sale exemplars as proved by the appellant and, therefore, the said sale exemplars are most reliable. He also tried to show the distance of plots involved in one of those sale exemplars from the acquired land relying on said Exbt.4/1 and Exbt.4/2. Finally, he referred to the following decisions of Hon'ble Apex Court:

(i) Mahesh Dattatray Thirthkar vs. State of Maharashtra, (2009) 11 SCC 141- At Para-47 it was observed that minor inconsistency in the testimony of witness do not warrant non-reliance of the same.

(ii) Chandrashekar (Dead) by LRS. & Ors. vs. Land Acquisition Officer & Anr., (2012) 1 SCC 390-Hon'ble Supreme Court at Para 22 reiterated the principles as enunciated in Lal Chand vs. Union of India, (2009) 15 SCC 769 and A.P. Housing Board vs. K. Manohar Reddy, (2010) 12 SCC 707, that while applying the sale consideration of a small piece of developed land to determine the market value of a large tract of undeveloped

acquired land, deductions between 20% to 75% can be made. But in 2009 in Subh Ram case, Apex Court restricted deduction on account of the "first component" or development, as also, on account of the "second component" of development to 33 % each.

(iii) Ashok Kumar & Anr. vs. State of Haryana,

(2016) 4 SCC 544-In this case, Hon'ble Supreme Court at Para 7 held that a higher compensation than what is claimed by the applicant in his pleading can be awarded by the Court and it is the duty of the court to award just and fair compensation taking into consideration the true market value and other relevant factors, irrespective of claim made by the owner. Finally, learned counsel prayed for a higher rate of compensation @Rs.40,00,000/- per kani for the land. [8] Mr. B. Majumder, learned Dy. S.G.I. for NF Railway, on the other hand, argued that the map as produced under Exbt.4/2 by the appellant did not demonstrate the physical distance between the lands of sale exemplars and the acquired land and nothing was proved by the appellant to show such actual physical distance. According to him, aerial distance cannot be taken into consideration for determining the market value. Learned Dy. S.G.I. also argued that maximum sale exemplars, as relied on by the appellant, are transacted for residential purposes i.e. for bastu (tilla) class of land which could not form the basis for determination of compensation. Referring to cross-examination of the present appellant, learned Dy. S.G.I. submitted that according to the appellant himself,

acquired land was situated at a distance of 2.5 Km from Belonia Municipality area and therefore, the acquired land was situated within undeveloped area having no potentiality. [9] Mr. B. Majumder, learned Dy. S.G.I. finally referred to the following decisions of Hon'ble Supreme Court:

(a) Kiran Tandon vs. Allahabad Development Authority & Anr., (2004) 10 SCC 745-At para-10 it was observed by the Apex Court that Collector's award under Section 11 is nothing more than an offer of compensation made by the Government to the claimants and burden of proving that the amount of compensation awarded by the Collector is inadequate lies upon the claimant and he is in the position of a plaintiff.

(b) Shaji Kuriakose & Anr. vs. Indian Oil Corpn. Ltd. & Ors., (2001) 7 SCC 650-At Para-3 it was observed that while determining the valuation of land under comparable sales method, the following factors are required to be fulfilled:

(1) the sale must be a genuine transaction,

(2) the sale deed must have been executed at the time proximate to the date of issue of notification under Section 4 of the Act,

(3) the land covered by the sale must be in the vicinity of the acquired land,

(4) the land covered by the sales must be similar to the acquired land, and

(5) that the size of plot of the land covered by the sales be comparable to the land acquired.

The Hon'ble Apex Court further observed that if all these factors are satisfied, then there is no reason why the sale value of the land covered by the sales be not given for the acquired land. However, if there is dissimilarity in regard to locality, shape, site or

nature of land between land covered by sales and land acquired, it is open to the court to proportionately reduce the compensation for acquired land to what is reflected in the sales, depending upon the disadvantages attached with the acquired land.

(c) Ravinder Narain & Anr. vs. Union of India,

(2003) 4 SCC 481-At para-9, it was observed that if the following principles of fixation of market value with reference to comparable sale are made, the element of speculation can be reduced to a minimum:

(i) when sale is within a reasonable time of the date of notification under Section 4(1);

(ii) it should be a bona fide transaction;

(iii) it should be of the land acquired or of the land adjacent to the land acquired; and

(iv) it should possess similar advantages. Same principle was also reiterated in Karnataka Urban Water Supply & Drainage Board & Ors. vs. K.S. Gangadharappa & Anr., (2009) 11 SCC 164, as referred by learned Dy. S.G.I.

(d) Major General Kapil Mehra & Ors. vs. Union of India & Anr., (2015) 2 SCC 262-At para-10 it was observed by the Apex Court that while fixing the market value of the acquired land, the land acquisition officer is required to keep in mind the following factors: (i) existing geographical situation of the land; (ii) existing use of the land; (iii) already available advantages, like proximity to National or State Highway or road and/or developed

area; and (iv) market value of other land situated in the same locality/village/area or adjacent or very near to the acquired land.

(e) Lal Chand vs. Union of India & Anr., (2009) 15 SCC 769-At para-13 it was observed that the percentage of "deduction for development" to be made to arrive at the market value of large tracts of undeveloped agricultural land (with potential for development), with reference to the sale price of small developed plots, varies between 20% to 75% of the price of such developed plots, the percentage depending upon the nature of development of the layout in which the exemplar plots are situated.

(f) M/s. Printers House Pvt. Ltd. vs. Mst. Saiyadan (Deceased) by L. Rs. & Ors., AIR 1994 SC 1160-The relevant observation at Para-30 as referred was that for determination of compensation on the basis of comparable sales method, the proximity of land of sale exemplar to the acquired land assumes great significance. Taking recourse to all these decisions of the Apex Court, learned Dy. S.G.I. submits that the appellant is not entitled to further enhanced compensation. [10] Mr. Kohinoor N. Bhattacharya, learned G.A. also made similar submission. However, he supported the report of the Executive Engineer, PWD as marked under Exbt.4/1 and 4/2. [11] The claimant proved 5 (five) numbers of sale exemplars under Exbt.2 series during hearing before the learned LA Judge to support his claim. Some sheets of revenue map, as proved under

Exbt.2 series, also do not indicate the location of plots of sale exemplars and the acquired plot to show the approximate distance between them. However, the Exbt.4/2 (additional evidence) indicates the approximate distance (aerial distance) of one sale exemplar, under Exbt.2 series bearing no.1-1535 dated 09.12.2010 from the acquired land. From this map, plot of another sale exemplar bearing no.1-1483 dated 19.11.2010 may also be guessed. The description of said 5 sale exemplars as relied on by the appellant is reflected in a chart below: Exbt. No. Deed No. Plot No. Class Area Sold Value (in Rs.) Rate (in Rs.) Approximate Distance between acquired Plot and plots under Exhibits Remark , if any series No. 1-1366 dated

25.10.2010 1601 Rubber garden (Chankhala Lunga)

0.08 Acre 1,50,000/- 7,50,000/- per kani Not available ---- series No.1-1483 dated

19.11.2010 3292 Bagan (Tilla)

0.06 Acre 1,50,000/- 10 lakhs per kani Not available North-PWD Road series No.1-1533 dated

15.12.2010 3088 Bastu (Tilla)

0.09 Acre 6,75,000/- 30 lakhs per kani Maybe 1.8 Km or so ---- series No.1-164 dated

10.02.2011 1688 Lunga

0.13 Acre 1,79,000/- 5,50,000/- per kani Not available ---- series No.1-1535 dated

09.12.2010 2927/8358 Bagan (Tilla)

0.01 Acre 1,50,000/- 60 lakhs per kani

1.8 km North-Nazrul market of Tripura Govt.

[12] According to appellant, originally the acquired land was barren land which was turned into a rubber garden by making necessary development. So, for all practical purposes, it can be presumed that he had turned the acquired land (except chara class) practically into bagan (tilla) class of land. Out of 5 sale

exemplars under Exbt.2 series, sale deed No.1-1366 dated

25.10.2010, No.1-164 dated 10.02.2011 and No.1-1533 dated

15.12.2010 relate to different classes of land other than bagan (tilla) or chara classes of land. Only, the deed No.1-1483 dated

19.11.2010 and deed No.1-1535 dated 09.12.2010 relates to bagan (tilla) class of land and the former was transacted @Rs.10,00,000/- per kani whereas the latter was transacted @Rs.60,00,000/- per kani. Both the sale deeds are contemporary in time and executed in the year 2010. [13] In Land Acquisition Officer, Kammarapally Village, Nizamabad District, A.P. vs. Nookala Rajamallu & Ors.,

(2003) 12 SCC 334-At para-6 of the judgment, it was observed by the Apex Court that where large area is the subject-matter of acquisition, rate at which small plots are sold cannot be said to be a safe criterion. It cannot, however, be laid down as an absolute proposition that rates fixed for small plots cannot be the basis for fixation of the rate. For example, where there is no other material, it may in appropriate cases be open to the adjudicating court to make comparison of prices paid for small plots of land. However, in such cases necessary deductions/adjustments have to be made while determining the prices. [14] In Mehrawal Khewaji Trust (Regd.) Faridkot & Ors. vs. State of Punjab & Ors., 2012 AIR SCW 2822, at para-15, it was also observed by the Apex Court that when there are several exemplars with reference to similar lands (emphasis added), 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. It was also observed that it would seem to be only fair that where the 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 and it is not desirable to take an average of various sale-deeds placed before the authority/court for fixing fair compensation. [15] The land under two sale deeds bearing no.1-1483 dated

19.11.2010 and bearing no.1-1535 dated 09.12.2010 are related to Bagan (tilla) class of land. The distance of land under deed no.1-1483 from acquired land is not discernible from the map and said land was transacted @ Rs.10 lakh per kani. The land of deed no.1-1535 is situated at a distance of 1.8 km from the acquired land and was transacted @ Rs.60,00,000/- per kani. There is nothing in the evidence to suggest that said transaction was not a bona fide transaction. However, as per the map under Ext.4/2, said land is situated at College Square area and much closer to the office of D.M. & Collector, South Tripura. Hotel, Colleges, temples etc. are nearer to it. The assessment note of the L.A. Collector also reflects this deed and also another sale deed where lands of bagan (tilla)

class were sold @ Rs.60,00,000/- per kani. Therefore, transaction at such rate is not unusual in that mouja. In light of the principle as laid in Mehrawal Khewaji Trust (Regd.) Faridkot & Ors. (Supra), deed no.1-1535 dated 09.12.2010 (Exbt.2 series) is taken into consideration subject to necessary deduction. Said deed was executed for a very small tract of land of area 0.01 acre and it is situated just adjacent to Najrul market as constructed by Govt. of Tripura. Therefore, it appears to be located in a commercial area. Further, the appellant in his cross-examination had admitted that the acquired land was situated at a distance of 2.5 Km from Belonia Municipal area. 30% deduction, therefore, is required to be made on that count considering higher potentiality of the land. Considering the long distance between land of said deed and the acquired plot, 20% is deducted and considering small area of land sold under said sale exemplar, further 20% is deducted. Thus, total deduction required to be made comes to (30%+20%+20%) =70%. Market value of acquired land is, therefore, determined at (Rs.60,00,000 -70% of Rs.60,00,000)= Rs.18,00,000/- per kani. No further benefit of escalation of price is given to the appellant. The award passed by the L.A. Judge is completely bereft of reasoning, and even there is no discussion of said deed no.1-1535 dated 09.12.2010 in the judgment. The L.A. Judge has mentioned some other sale exemplars in the judgment, going beyond the evidence. [16] Learned Dy. S.G.I. though argued that the aerial distance of acquired plot from the sale exemplar could not be taken

into consideration but such a plea was not convincing as the revenue map also demonstrates the distance measured by scale and not the physical distance based on road connectivity.

In the result, the compensation for the value of land is accordingly decided @Rs.18,00,000/- per kani. The value of rubber trees is maintained @ Rs.10,000/- each. The rate of other trees shall remain same as determined by the L.A. Judge. The present appellant shall get 75% of compensation as deriving from the land value and rest 25% will go to the original owners of the land. The compensation for the trees will be disbursed to the appellant only. Needless to say, the compensation shall carry 30% solatium and other statutory interests and additional compensation as awarded by the LA Judge, South Tripura, Belonia. The instant appeal is accordingly disposed of.

Pending application(s), if any, also stands disposed of.

Registry is to re-consign the LCRs with a copy of this judgment.

JUDGE

Rudradeep RUDRADEEP BANERJEE Date: 2024.03.14 15:17:18 +05'30'

HIGH COURT OF TRIPURA A G A R T A L A LA App. No.108 of 2019 Sri Uttam Majumder, Son of Sri Milan Behari Majumder, of No-1 College Road, Sarasima, P.O. Sarasima, P.S. Belonia, District South Tripura, Pin 799155. At present residing at Ker Chowmuhani, T.G. Road, Ramnagar Road No.-2, P.O. Ramnagar, P.S. West Agartala, District West Tripura, Pin 799002. ……… Claimant Petitioner/Appellant(s) – V e r s u s – 1. The Deputy Chief Engineer (Construction), N.F. Railway, Agartala, West Tripura, Badharghat Railway Station, P.O. Siddhi Ashram, P.S. Amtali, District West Tripura. ………Appellants-Respondent(s) 2. The Land Acquisition Collector, South Tripura, Belonia, P.O. Belonia, P.S. Belonia, District South Tripura, Pin 799155. …….. Respondent(s) For the Appellant(s) : Mr. J. Rajesh, Advocate. Mr. N. Majumder, Advocate. For the Respondent(s) : Mr. B. Majumder, Dy. SGI. Mr. Kohinoor N. Bhattacharya, G.A. Date of hearing : 5th February, 2024. Date of delivery of : 13th March, 2024.