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State of West Bengal Vs. Musst. Nurjahan Sakil and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 52 of 1983
Judge
Reported inAIR1985Cal39,88CWN953
ActsWest Bengal Land Development and Planning Act, 1948 - Section 8; ;Land Acquisition Act, 1894 - Sections 9, 9(3), 18, 23 and 25
AppellantState of West Bengal
RespondentMusst. Nurjahan Sakil and ors.
Appellant AdvocateA.P. Chatterjee and ;N.G. Das, Advs.
Respondent AdvocateSaktinath Mukherjee and ;Tapan Kumar Sengupta, Advs.
DispositionAppeal dismissed
Cases ReferredSushila Devi v. State of Bihar.
Excerpt:
- b.c. ray, j. 1. this appeal is directed against the judgment and decree passed in lra case no. 25 of 1969 (vi on 11th aug 1982 by sri a. k. chakraborty, 3rd additional special judge. alipore, allowing the application for reference and fixing the value of the acquired lands at rs. 2500/- per cottah irrespective of the belts at the flat rate. the valuation of the structures has been fixed at rs. 1,42,000/-. 2. the aforesaid reference case has arisen in respect of an application made under the west bengal land development and planning act 1948 for regularisation of sanwar squatters colony project in mouza kalidaha, p. s. dum dum for settlement of immigrants. the notification under section 4 of the said act was published on 1st aug. 1957 and the declaration in respect of the said lands was.....
Judgment:

B.C. Ray, J.

1. This appeal is directed against the judgment and decree passed in LRA Case No. 25 of 1969 (VI on 11th Aug 1982 by Sri A. K. Chakraborty, 3rd Additional Special Judge. Alipore, allowing the application for reference and fixing the value of the acquired lands at Rs. 2500/- per cottah irrespective of the belts at the flat rate. The valuation of the structures has been fixed at Rs. 1,42,000/-.

2. The aforesaid reference case has arisen in respect of an application made under the West Bengal Land Development and Planning Act 1948 for regularisation of Sanwar Squatters Colony Project in Mouza Kalidaha, P. S. Dum Dum for settlement of immigrants. The Notification under Section 4 of the said Act was published on 1st Aug. 1957 and the declaration in respect of the said lands was published on 14-2-62 and the award was made by the Collector, 24 Parganas in Case No. L. A. (Rehab) 8 of 1956-57 on 3-12-62 and the possession of the land was taken on 31-12-62. In the award made by the Collector valuation of the land was determined on belting method. The bastu land of the 1st belt was valued at Rs. 600/- per cottah. The tank land was valued at Rs. 300/- per cottah and the drain land was valued.at Rs. 150/- per cottah. The bastu land of the second belt was valued at Rs. 400/-. The tank land was valued at Rs. 200/- per cottah and the drain land was valued at Rs. 100/- per cottah- whereas in the 3rd belt, the bastu land was valued at Rs. 200/-per cottah. the tank land was valued at Rs. 100/- per cottah and the drain land was valued at Rs. 50/- per cottah. Thus the total valuation of the lands without the trees and the building was determined at Rs. 1,44,446.11p. and for the trees an amount of Rs. 3105/- was determined as compensation and for the structures Rs. 45,402/- was determined as the value Thus the total value of the lands and the structures including trees had been determined at Rs. 1,92,947,Hp by the Collector in his award. Against the said award an application for reference under Section 18 of the Land Acquisition Act was made before the Collector as valuation of the land and the buildings as made by the Collector at the 1946 rate was totally inadequate and meagre. The said application for reference was registered as L. A. Case No. 25/1968 (V) of the Court of the Special L. A. Judge. 24 Parganas. On 4th July 1970 the Special L. A. Judge accepted the reference in part and modified the award of compensation as made by the Collector by determining the value of the said land of the 3 belts at Rs. 1000/-. Rs. 666/- and Rs. 333/- per cottah respectively. The value of the tank in 1st, 2nd and 3rd belts was determined at Rs. 500/-. Rs. 333/- and Rs. 166/- per cottah respectively. The value of the structures was fixed at Rs. 49,942/-. Thus the valuation was made on the basis of 1946 price. An appeal was taken against the said judgment before this Court in F. A. 251 of 1971 and this Hon'ble Court by Judgment dt. 24-3-82 sent the matter back on remand to the Land Acquisition Judge for fixing the valuation of the lands and structures afresh as prevailing on 1-8-57 i.e. the date of the publication of the Notification under Section 4 of the Land Development and Planning Act 1948. After remand the case was heard and decided by the 3rd Special L. A. Judge, Alipore, who allowed the said application for reference and found inter alia as follows : --

(1) The adoption of the belting method and the extent of lands in the respective belts cannot be challenged by the opposite party as Govt. is bound by the offer which includes reason for such offer and not the claimant.

(2) The mode of belting and the extent of lands in each belt is consistent with the nature of the acquired properties and no wrong was committed by the L. A. Collector in this manner.

(3) The sale deeds. Exts. E to E8. cannot he taken to he the proper criteria for determination of the valuation of land at the relevant time.

(4) The Collector having adopted the belting method as criterion for determining the valuation of land and considering the land abutting Dum Dum Road as 1st belt land which Government is bound to accept, there is no escape from the conclusion that all nearby lands to the South of acquired lands must be considered within the 3rd belt.

(5) The argument that the valuation made in the judgment (Ext. 9) in L. A. Case No. 26/79(V) should be considered as criterion for fixation of valuation of acquired land in the 1st belt cannot be accepted.

(6) The value of the land, in the 3rd belt, being Rs. 1435/- per cottah as per judgment (Ext. 9), the 1st belt land would be valued at Rs. 4305/- and the second belt would be valued at Rs. 2870/-. The acquired land having advantage of two more roads with added advantage of principal arterial road on the frontage a 40% increase in the land value over what was allowed in the judgment (Ext. 9), was quite justified. The value of the land in 1st. 2nd and 3rd belt was determined at Rs. 6027/-. 4018/- and Rs. 2009/- respeclively including 40%. The value of the tanks would be half of the respective value of solid lands. The drain land was treated as solid land.

3. It has been further held that the claimant has claimed Rs. 3500/- at the flat rate for all the acquired lands including tanks, and compensation claimed at that rate be allowed. The valuation of the building has been fixed at Rs. 1,42,000/-after deducting from Rs. 2,36,727/-, Rs. 94,727/- on account of depreciation. This sum is more than 40% of the valuation of the structures. The learned Special L. A. Judge has also directed the payment, to the claimant, of statutory allowance to the market value of acquired land @ 15% and further payment of interest at the rate of 6% from the date of taking possession till payment on the enhanced compensation amount including Section A. The award of the Collector was modified accordingly.

4. Against this judgment and decree the instant appeal has been preferred by the State of West Bengal. A cross objection under Order 41 Rule 22 has also been filed by the respondents.

5. Mr. Arun Prokash Chatterjee, learned Advocate, appearing on behalf of the appellant, has submitted, in the first place, that the calculation of the value of the land on the basis of the belting method is wholly illegal and bad. He has submitted in this connection by referring to the decision in AIR 1933 Cal 25. that the adoption of the belting method in valuing the land acquired has rendered the award made by the Collector illegal and bad. He has also drawn the attention of the Court in this connection to a passage from 'Parks on Valuation'. He has next submitted that the judgment. Ext. 9. which has been considered and relied upon by the Special Land Acquisition Judge in determining the value of the land on the date of publication of the notification under Section 4 of the West Bengal Land Development and Planning Act on 1-8-57 is also wrong inasmuch as the land though included in the same mouza is in an advantageous position inasmuch as it is close to the Railway Station and also by the side of the road whereas the land in question though situated on the Dum Dum Road yet major portion of the land is at Jawpur Road which is only 16' wide and this land is comparatively far away from the Railway Station than the land in question in Ext. 9. It has, therefore, been submitted by Mr. Chatterjee that the land value as modified and fixed by the Collector in his award and subsequently modified by the Special L. A. Judge on reference is wholly bad. It has been lastly submitted by Mr. Chatterjee that the building in question was constructed in 1926 and the property was acquired and possession was taken on. 31-12-62 i.e. 36 years after the construction of the house. The depreciation will be more than what was allowed. The house was in a bad state of repair and as such practically it has got very little value for the purpose of determination of compensation. It has, therefore, been submitted by the learned Advocate for the appellant that the valuation that has been determined of the building and other structures on the acquired land is excessive and the judgment and decree made by the Special L. A. Judge is liable to be set aside. It has been further submitted in this connection that as there is no proper evidence on record from which the value of the structures can be ascertained with certainty, the case should be sent back on remand for taking further evidences on this question for determination of proper valuation of the structures.

6. Mr. S. N. Mukherjee, learned Advocate appearing on behalf of the referring claimants/respondents, has, on the other hand, submitted that the valuation of land and structures as made by the learned Judge cannot, at least, be assailed by the State. In the first place, there is no infirmity or illegality committed by the learned Special L. A. Judge in determining the valuation of the land on the basis of the valuation as made in the Judgment (Ext. 9) relating to the land of the same mouza Kalidaha and in LRA Case No. 216/79(V) in regard to acquisition made on 11-4-57. It has been further submitted in this connection by Mr. Mukherjee that these lands are situated on the back side of the land in question and they are at a greater distance from the arterial Dum Dum Road which is about 60' wide. The belting method, it has been next submitted, that has been adopted by the Collector in valuing the land, cannot be questioned by the State Appellant and this belting method has been rightly adopted in determining the valuation of the land in question particularly in view of the fact that the valuation of the land in the same Kalidaha Mouza was determined also by the Land Acquisition Judge and the said judgment has not been challenged by the State by preferring an appeal. In support of his submission Mr. Mukherjee has cited some cases. It has been next submitted by Mr. Mukherjee that the plea of the bar under Section 25 of the Land Acquisition Act 1894 cannot be raised inasmuch as there is nothing to show from the record that the notice under Section 9 of the said Act has been served strictly in compliance with the manner and mode laid down in Sub-section (3) of Section 9 of the said Act. It has been, therefore, submitted by Mr. Mukherjee that the order of the learned Judge that the claimants-respondents would not get more than Rs. 3500/- per Cottah as valuation of the land acquired as they have already claimed compensation at that rate in their reference petition under Section 18 of the Act, a sum of Rs. 3500/- per cottah as compensation for all the acquired lands irrespective of their classification, is not correct and as such the claimants-respondents are entitled to get the valuation of the lands as determined by the learned Special L. A. Judge in his said judgment. It has been lastly contended by Mr. Mukherjee that the building was made of 1st class materials with Italian marbles and doors and windows were of 1st class Burma Teak as will be evident from the reports of the Valuers, both of Hiron Kumar Sarkar as well as H. C. Mukherjee. In consideration of all these evidences the special Land Acquisition Judge has rightly determined the value of the structures at Rs. 2.36,726/- and after allowing the depreciation value was fixed at Rs. 2,00,000/-. The Special L. A. Judge also made further deduction as the claimants failed to produce papers to show that all the items of the property were maintained property and reduced the value to Rs. 1,42,000/-. There has been a deduction of more than 40% from the total value of the structures. It has been submitted that there are no infirmities in the judgment of the Special L. A. Judge in fixing the valuation of the structures.

7. The first question that requires decision in this appeal is whether the belting method adopted by the L. A. Collector and subsequently followed by the Land Acquisition Judge in determining the valuation of the land acquired is illegal and bad in the facts and circumstances of the instant case. It has been urged on behalf of the State, Appellant, that the belting method is not appropriate for fixing the valuation of the land on the date of notification under Section 4 of the Act on 1-8-57. Before discussing and determining the merit of this contention at the outset it is relevant to mention that the Collector made his award by adopting the belting method. The valuation that has been made by the Collector in making the award is made certainly on behalf of the Govt. and as such the same cannot be challenged by the Govt. This has been held in : AIR1973Cal284 . It has been observed that the Collector acts in the matter of the enquiry and the valuation as the agent of the Government. Consequently, an award of the Collector is an offer of compensation made on behalf of the Government. The Government is bound by the offer but not the claimant, for, he can seek a reference to the Court from the award under Section 18 of the Land Acquisition Act. 1894. An award which has not been accepted by the owner or the person interested, cannot be relied on by the Government as evidence of market value of land in a different land acquisition proceeding for the simple reason that the award contains an unaccepted offer of compensation made on behalf of the Government..... But a claimant in a different proceeding can very well rely on the unaccepted award as evidence of the market value and if the land be similar to the land in respect of which the award relied upon was made the Govt. will be precluded from saying that the offer contained in the award does not represent the market value of the acquired land. This observation was made in the case of Pratima Ghosh v. State of West Bengal : AIR1973Cal284 .

8. In the book by Parks on Valuation at page 95 it has been said that the property cannot be valued by what is sometimes called 'The Belting Method of Valuation', but by the belting method it is possible to estimate the value of one plot of land, fairly, accurately in comparison with another plot of known value. It is very rare that in a district, plots of land are all of the same size and shape and possessing similar amenities, and a valuer may have to ' value an irregular shaped plot and the only known values are for regular shaped plots. Again the normal depth of plots in a street may be 60 ft. the valuer may have to value an isolated plot having a depth of 60 ft. If sufficient dala are available the area of plots in a locality can be reduced to units, then by taking into account frontage, depth, shape and size it is possible to compare one plot with another fairly accurately. It has been further mentioned in the said honk that the frontage land has a greater value than hack land: so when making comparisons by Belting, the very first step is to ascertain to what depth of the land does the maximum value extend. The next step is to ascertain the relationship regarding the value of the hack land to the fronl land. In : AIR1950Cal356 ; Province of Bengal v. Amulya Dhon Addy. it has heen held in consideration of the depth of the land (sic) is the proper method. In the case of Nrityagopal Sen Poddar v. Secretary of State. AIR 1933 Cal 25 at page 26 it has heen observed :

'Now so far as the system of helling is concerned it is a system which is widely used, hut its value as a system depends much upon a variety of facts. If data are available showing the proportion at which the value of land diminished, accordingly as it is situated at a particular distance from a main road or thoroughfare, the system would he perfectly scientific. In the ahsence of any such data also it may he assumed that in big cities where land sells by cottahs or yards or feet there is such a proportion, as common experience shows.'

A similar question arose as to whether the belting method should be adopted for the purpose of valuation of Ihe acquired plot being premises No. 70. Nimtolla Ghat Street, Calcutta and it was held by a Division Bench of this Court that for the purpose of valuation the acquired plot No. 70 should he divided into two hells. As the frontage was about 53 ft, the first belt ought to be of a depth of 106 ft. But in spite of the proceedings of the calculation the said plot was divided into two equal helts each belt having 1/2 of the total area. The first bell was valued at Rs. 5150/- per cottah whereas the second belt which had a recess advantage was valued at Rs. 4255/- per cottah. This was held in the case of Province of Bengal v. Uma Charan Law, (1944) 48 Cal WN 609. It is relevant to mention in this connection that in the aforesaid case it was further held that the hasis of determination of the market value of the land within Section 23(1)(i) of Land Acquisition Act, is the value of the land to the owner. This value of the land to the owner must be judged by an objective and not subjective standard. Ordinarily, the objective standard will be the price that an owner willing and not obliged to sell might reasonably expect to obtain from a willing purchaser. The property must be valued not only with reference to its condition at the time of the declaration but its potential value must be taken into consideration. This view had been endorsed and reiterated in a later case in : AIR1959Cal572 , State of West Bengal v. Bibhuti Bhusan Chatterjee. In this case the valuation concerned a strip of land measuring 6 ft. in width forming part of a plot of land which had been acquired for widening a lane. The acquired strip, it was observed, should he valued as a part of the claimant's plot whose part it formed, taking into account its (that is of the plot) value to the owner with all its existing advantages and all its possibilities and potentialities. This observation had heen made following the decision in 52 Ind App 133 : AIR 1925 PC 91, Narsingh Das v. Secretary of State.

9. Considering the above decisions and also the passage referred to hereinbefore of Parks on Valuation, I am constrained to hold that the helling method of valuation that has heen adopted by the learned Special L. A. Judge in deciding the reference petition and in determining the valuation of the lands acquired is the appropriate method and there is no error or illegality committed and the finding of the learned Special Land Acquisition Judge that the adoption of the belting method and the extent of land in the respective belts as determined by the Collector could not be challenged by the opposite party as Govt. was bound by the offer is a correct finding and the same is affirmed.

10. The next question that requires decision is whether the valuation that has been made by the Special L. A. Judge is arbitrary or excessive. It is quite well known that in determining such valuation there may be some guesswork. The learned Special L. A. Judge has considered the valuation of the land of the same Kalidaha Mouza which is situated on the south of the acquired land in question and also at a greater distance from the main arterial road of the locality i.e. Dum Dum Road and rightly held that all lands to the south must be considered to he falling within the 3rd belt. These lands are on Sett Bagan Road having a width of only 16 ft. while Dum Dum Road has a width of 55 ft. and it is the main arterial road of the locality. Moreover there are two roads on other two sides of the said land i.e. Jawpur Road which is 16 ft. wide. Considering all these circumstances and also the position of the land acquired the learned Special L. A. Judge has rightly divided the acquired solid land into 3 belts and determined the valuation of the respective 1st, 2nd and 3rd belts as Rs. 6027/-. Rs. 4019/- and Rs. 2009/- respectively including 40% increase in land value over what was allowed by Judgment (Ext. 9) for the added advantage of the two more roads and also a further advantage of the land being situated on the main arterial Dum Dum Road. The value of the acquired tank land had been determined as half of the value of the solid land of the first, second and third belts.

11. Considering all these circumstances I do not find any merit in the contention of Mr. Chatterjee that the valuation of the land has been arbitrarily determined at a high price. On the other hand in my opinion, the Special L. A. Judge has determined the value of the land at the price prevailing on the date of notification in respect of the property in question. In the facts and circumstances of the case there is no infirmity with regard to this finding of the Court below.

12. As regards the valuation of the building it is clear from the evidence on record particularly from the depositions of Harish Chandra Mukherjee, P. W. 3, the valuer, as well as of P. W. 1 Hiron Kumar Sarkar, the other valuer who deposed that he visited the disputed property towards the end of 1948 at the instance of Sri 1. Ahmed, the lather of the referring claimants that the properties comprised of fashionable garden bouse consisting of one storeyed main building one two stofeyed out house, Durwan's bunglow. cow shed. Band stand on an island etc. It also appeared from the evidences that there were Tennis Lawn and other Lawns. The acquired properties were within South Dum Dum Municipality about 1200 ft. away from the extremity of Calcutta Municipality. The said structures were in tiptop condition. The valuation of the structures were made on the basis of the P. W.D. rates. Due allowances have been given for the depreciation. It also appears that the valuation of the building (cost of replacement of the buildings and structures) has been determined at Rs. 2,36,727/- and a sum of Rs. 94,727/- was deducted on account of depreciation i.e. more than 40% of the valuation of the structures. In such circumstances it is very difficult for us to hold that the valuation of the building has been made arbitrarily.

13. It is relevant to refer in this connection to a passage from Parks on Valuation at pages 84 and 85 :

'To the value of the land must be added the depreciation value of the bulding that is, the present day market value of the building. The usual method is to ascertain the prime cost of a building and to deduct therefrom depreciation to give the present day market value.

As was laid down by the Privy Council in Harichand v. Secretary of State, 44 Cal WN 5 : (AIR 1939 PC 235), this method is, what is commonly known as 'Contractor's Method'. The subject to be valued being a building apart from the site, the principle of fixing value by ascertaining the cost of reproducing the building at the present time and then allowing for depreciation in consideration of the age of the bulding and for the cost of such repairs as might be required apart from depreciation is quite a well known and recognised method of valuing buildings for the purpose of compensation. The prime cost is the value a similar structure will cost to erect taking into account all the ornamental features which have a market value.'

As I have said already that it is clear from the evidence of the valuer H. C. Mukherjee, P. W.3, as well as his report, Ext.8, that valuation of the building was made in accordance with P. W.D. rates on the basis of the Contractor's method and depreciation has been allowed to the extent of more than 40%. It was also in the evidence that the building was thoroughly repaired after it was derequisitioned in 1947. H. K. Sarkar. P.W.1, the valuer, also inspected the house in 1948. This is also evident from the field hook which showed that he visited the house in 1948 P. W. 2 also staled in his deposition that his valuer, P.W.1, visited the house in 1948. The Special L. A. Judge rightly observed that these statements of P. W. 2 were not challenged and moreover the valuation of the items of articles of the building and structure, on the acquired plot of land which had been made in accordance with P. W. D. rate cannot be said to be excessive or arbitrary. These items of structures as given by P. W. 1 were found totally with the inventory list of the structures filed by the opposite party. In such circumstances, as I have found already that the valuation of the building as made and as determined by the learned Special L. A. Judge cannot be said to be excessive or arbitrary and as such there is no room for interference with the said finding of the Special L. A. Judge.

14. Though the learned L. A. Judge fixed the value of the land of the 1st belt at Rs. 6027/-. and that of the second bell at Rs. 4018/- and of the 3rd belt at Rs. 2009/-per cottah yet the learned L. A. Judge allowed the valuation of the acquired land at the flat rate of Rs. 3500/- per cottah including the tank to the referring claimants for compensation in consideration of the claim made in the application for reference under Section 18 of the L. A. Act. This finding of the Court below is, in my opinion, not correct inasmuch as the bar of Section 25 of the L. A. Act, which prevents the claimant who has filed a claim for compensation on being served with a notice under Section 9(3) of the L. A. Act, 1894. to the effect that he cannot claim higher compensation than what he has claimed in his petition for compensation filed, is not applicable to this case as there was nothing to show from the record that the special notice under Section 9(3) of the said Act has ever been served on the respondents within the specified time as required and no petition claiming compensation in respect of the land acquired had even been made by the respondents or their predecessor-in-interest pursuant to the service of such notice under Section 9 of the said Act. A mere filing of a reference petition under Section 18 of the L. A. Act and claiming therein compensation of the land at the rate of Rs. 3500/- per cottah does not operate as a bar to the petitioners claiming higher compensation or the Special L.A. Judge in determining higher valuation of [he acquired lands. In AIR 1930 Cal 171. question arose whether the bar under Section 25 can be invoked in that case where notice under Section 9 of the L. A. Act was served on 24-2-26 and the persons inlcrested were directed to appear before the Collector on 11-3-26 i.e. on the 15th day. It was held that to apply the. provision in Section 25 of the said Act statutory provision had to be strictly applied. This being not done the provision of Section 25 could not be invoked to prevent the claimant from claiming the proper compensation in the reference made by the Collector before the learned Judge under L. A. Act. In : AIR1973Ori173 (FB) Collector of Cuttak v. Mayadhar Sahu, at page 175, it was held that if no notice either public or special, has at all been issued under Section 9. Section 25 did not operate because in that case no stage was ever reached where an application could be said to have been made or to have been refused to make a claim or to have omitted to make a claim. The Court was. therefore, not restrained from awarding a higher compensation than the amount awarded by the Collector under Section 11, while determining compensation in a reference under Section 18. This would be the position, if proceedings subsequent to Section 9 stage culminating in the Collector's award were not void. The same view was also reiterated in : AIR1963Pat469 . Sushila Devi v. State of Bihar.

15. In view of the decisions referred to hereinbefore 1 am constrained to hold that the finding of the Court below that the referring claimants would get compensation at the rate of Rs. 3500/- per cottah for all the acquired lands on the flat rate is erroneous and as such the same is set aside. The compensation of the acquired land of the 1st, 2nd-and 3rd bells be calculated and determined at the rales fixed by the L. A. Judge at Rs. 6027/- Rs. 4018/- and Rs. 2009/- respectively. The value of the acquired tank land of the 1st, 2nd and 3rd belts should also be determined on the basis of the half of the respective value of the solid land of the first, second and third belts accordingly. The referring claimants shall also get statutory allowance @ 15% and they will also get interest at the rate of 6% per annum from 31-12-62 i.e. the date of taking possession of the land acquired on the enhanced compensation amount including statutory allowance deducting the amounts that have already been withdrawn by the referring claimants. The Collector is directed to calculate the compensation in the light of the above observations within two months from the dale of the decree. The balance amount already deposited in the Court, below may be withdrawn by the claimants.

16. The appeal is dismissed. The cross objection is allowed. The judgment and the decree of the Court below is modified to the extent indicated hereinbefore. As the appeal and the cross objection have been disposed of as above, no further order is necessary on the application filed which is also disposed of.

17. There will be no order as to costs.

S.K. Mookherjee, J.

18. I agree.


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