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Sushil Chandra Ghosh Vs. the State of West Bengal - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. Nos. 227 to 229 of 1957
Judge
Reported inAIR1971Cal389
ActsCalcutta Improvement Act, 1911 - Section 9; ;West Bengal Calcutta Improvement Act, 1955; ;Land Acquisition Act, 1894 - Section 6
AppellantSushil Chandra Ghosh
RespondentThe State of West Bengal
Appellant AdvocateS.C. Mitter and ;S.P. Roy Choudhury, Advs.
Respondent AdvocateBhabani Prasun Chatterjee and ;Sushil Kumar Banerjee, Advs.
DispositionAppeals allowed
Excerpt:
- .....material date was not may, 1950 but was september, 1954, there having had not been any increase of land value during the intervening period the market value in 1950 was the same as in 1954. relying on the amended section 74-c (i) of calcutta improvement act 1911, which came into force on 20th october, 1955 the president disallowed 15% additional compensation as provided for by section 23(2) of land acquisition act and upheld the collector's awards that also disallowed such additional compensation. the valuation in regard to premises nos. 33 and 34 made by the collector's award was upheld (page 98 of the paper book in f. a. no. 227 of 1957). though the president observed that valuation of collector regarding premises no. 35 required slight modification (page 98 of the paper book in f, a......
Judgment:

Bagchi, J.

1. These three appeals at the instance of three different set of claimants, in a proceeding under the L. A. Act read with the relevant provisions of the Calcutta Improvement Act, 1911 arise out of the three awards, rendered by the Improvement Trust Tribunal, covered by the one and same judgment delivered by the President of the said Tribunal.

'These three valuation references Involving common questions of fact and law were heard together at the desire of parties. They arise out of the acquisition of three premises for the purpose of the Calcutta Improvement Trust Scheme No. VII (Manicktolla) published on May 25, 1950 under Section 43(2) of the Calcutta Improvement Act, 1911. For valuing the disputed premises. May 25, 1950 shall be treated as the material date, and not September 2. 1954 which was the date of publication of the declaration under Section 6 of the Land Acquisition Act, 1894. The subject-matters of Cases Nos. 35, 36 and 38 are respectively premises Nos. 34, 35 and 33. Bagmari Lane situated on a private common passage from that lane. These premises originally belonged to what was then known as 10, Bagmari Lane of which the owner was Amulya Chandra Ghose. He carved out that premises into several lots on paper and created a common passage also on paper for giving access to these lots and gifted the three lots in question to three of his sons with a plan attached to each deed of gift. Lots E. F and G were respectively gifted to Ashim Chandra Ghose, Prokas Chandra Ghose and Sushil Chandra Ghose and subsequently these lots were numbered as premises Nos. 33, 34 and 35. The claimant in Case No. 34 is Prokash Chandra Ghose and that in Case No. 35 is Sushil Chandra Ghose. Ashim Chandra Ghose died in 1937 or 1938 leaving him surviving his widow and five sons. The widow died subsequently. The Collector made a joint award in favour of the five sons, Adinath, Pareshnath, Pashupatinath, Alokenath and Amarnath. Amarnath is a bachelor and it is stated that he has not been heard of since July31. 1947. The remaining four brothers are the claimants in Case No. 38.

The Collector awarded Rs. 28441-15-1 as compensation for the market value of l b. 9 k. 15 ch. 1 sq. ft. of land (solid --12k. 60 eh. 31 sq. ft. and tank -- 17 k. 8 ch. 15 sq. ft.) comprises in premises No. 33 which is the subject-matter of Case No. 38. His award in respect of 1 b, 10 k. 10 ch. and 21 sq. ft. of land (solid --12 k. 8 ch. 19 sq. ft. and tank--18 k. 2 ch. 2 sq. ft.) comprised in premises No. 34 of case No. 35 was Rs. 26882-6-4 and that in respect of 1 b. 1 k. 8 ch. 19 sq. ft. of land, treated as solid but low land, was Rs. 18473-12-0. He did not allow any statutory compensation under Section 23(2) of the Land Acquisition Act.

Not being satisfied with the awards, the claimants applied for reference claiming compensation at the Rs. 1500 per kotta in respect of the land of each of the premises Nos. 33 and 34 and at Rupees 2000 per kotta in respect of the land of premises No. 35. They also prayed for an order of payment of statutory allowance at 15%. At the trial the claims were reduced to Rs. 1344 per kotta. Rs. 1338 per kotta and Rs. 1918 per kotta respectively for the lands of premises Nos. 33, 34 and 35. Along with each reference the Collector submitted a statement of grounds contemplated by Section 19(1)(d) of the Land Acquisition Act.

In support of their case the claimants examined Sushil Chandra Ghose, one of the claimants, and Mr. P. C, Chatterjee, an engineer and valuer, as expert witness. The State examined four witnesses Including Mr. Sukumar De, Assistant Valuer, Calcutta Improvement Trust, who supplemented and in effect modified the Collector's valuation and reduced his Award.

One of the points for determination in this case is the valuation of the land of the three premises in question. The Collector considered four transactions of sale: (1) sale dated 10th January, 1949 of premises No. 12, Bagmari Lane, having an area of 2 k. 0 ch. 0 sq. ft. for Rs. 4250 at Rs. 2125 per kotta, (2) sale dated 14th February, 1949 of premises No. 5/3. Bagmari Lane, having an area of 1 k. 7 ch. 22 sq. ft. for Rs. 3000 at Rs. 2040 per kotta, (3) sale dated 4th April, 1949, of premises No. 5/4, Bagmari Lane, having an area of 1 k. 8 ch. 6 sq. ft. for Rs. 3500 per kotta at Rs. 2333 per kotta and (4) sale dated 7th December, 1951 of premises No. 27G, Bagmari Lane, having an area of 2 k. 4 ch. 32 sq. ft. for Rs. 2294 (with huts) at Rs. 997 per kotta (with huts). The claimants' valuer, Chatterjee relied on the sales of 5/3 and 5/4, Bagmari Lane and not on the other two sales referred to by the Collector, He discarded the transaction relating to 12, Bagmari Lane and 27G, Bagmari Lane for goodreasons. According to him, 12, Bagmari Lane is unbuildable. That is not so. As a matter of fact, it was found built upon by a long tiled shed and Cl. shed. It is not, however a normal or regular plot as its frontage on, Bagmari Lane is 15 ft, only and its average depth is nearly 100 ft. Premises No. 27G. Bagmari Lane had not the same disposition at the material date with reference to which it was valued by the Collector. There was no common passage at that date and it was then part of a big factory site which was subsequently carved out and sold in lots. The Collector himself awarded Rs. 1500 per kotta for land though the sale price was Rs. 997 per kotta. The Collector himself did not accept that rate, and awarded a higher value. Since the claimants' expert was justified in rejecting the transactions relating to 27G and 12, Bag-mail Lane and since both the Collector and the claimants' expert relied upon the transactions concerning 5/3 and 5/4, Bagmari Lane, it would be advisable to value the properties in question with reference to those two transactions after giving suitable allowances because premises Nos. 5/3 and 5/4 enjoy advantages which the disputed premises do not. They are not similar plots. Similarly situated and enjoying similar advantages. Nevertheless, as no other comparable transactions were placed before the Court, it had no option but to value the disputed premises with reference to those premises after making such deduction as are reasonable and proper in the circumstances of the case.'

2. The President considered the valuation of the Collector and experts examined both sides. He repeated the evidence of the appellants' expert Chatterjee regarding valuation as being perfunctory, unhelpful and unworthy of acceptance, observing that upon the claimants burden lay to establish that the Collectors' valuation was wrong, the learned President held that the burden was not discharged by the claimants in the reference cases in question. After considering the materials in the record the President upheld Collector's award in respect of premises Nos. 33 and 34. Regarding Collector's award in respect of premises No. 35, the President made a slight modification and arrived at the modified valuation at Rs. 20,194-6-5 p. Material date for the purpose of valuation of the premises in Question according to the Tribunal was 25th May, 1950, the date of publication of notification under Section 43 (2) of Calcutta Improvement Act. 1911 in view of the provisions of Section 74-C (ii) of the Calcutta Improvement Act, as Introduced by amending the original Act, by the amending W. B. Act XXXII of 1955. The President held that the market value of land comprised within any improvement scheme framed by the Board and published under Section 49 of the Act shall be deemed to be the market value according to the disposition of the land at the date of publication of the notification under Section 43 (2) of the Calcutta Improvement Act, 1911. The President held that the change in the law was a change in the procedural law and as such had no retrospective effect since none had a vested right in the law of procedure. Further the President held that the Collector's awards having been passed after the Amending Act had come into force, the Collector was correct in taking 25th May, 1950 as the date for determination of the market value and was justified in not taking 2nd September, 1954 as the date for determination of the market value. The President held that even if the material date was not May, 1950 but was September, 1954, there having had not been any increase of land value during the intervening period the market value in 1950 was the same as in 1954. Relying on the amended Section 74-C (i) of Calcutta Improvement Act 1911, which came into force on 20th October, 1955 the President disallowed 15% additional compensation as provided for by Section 23(2) of Land Acquisition Act and upheld the Collector's awards that also disallowed such additional compensation. The valuation in regard to premises Nos. 33 and 34 made by the Collector's award was upheld (page 98 of the paper book in F. A. No. 227 of 1957). Though the President observed that valuation of Collector regarding premises No. 35 required slight modification (page 98 of the paper book in F, A. No. 227 of 1957) he by his final order (page 102 of the paper book in F. A. No. 227 of 1957) dismissed the valuation case No. 35 with cost to the State. As regards valuation Cases Nos. 33 and 34, the final order of the President speaks not a word. We may take it that in Valuation Case Nos. 33 and 34 Collector's awards were upheld but nothing more.

3. The claimants in each of these Valuation Cases Nos. 33, 34 and 35 preferred those appeals against the Tribunal's judgment and awards respectively which have been heard analogously and shall be governed by this judgment.

4. The first question for consideration is whether the material date for valuation for payment of compensation and additional compensation for the premises Nos. 33. 34 and 35 is 25th May, 1950 or 2nd September, 1954. The schedule to the Calcutta Improvement Act, 1911 referred to in Section 71 of the Act, on being amended by the Calcutta Improvement (Amendment) Act, 1955. W. B. Act XXXII of 1955 has now the Sections 6-A and 9 that have modified the relative provisions of the Land Acquisition Act, 1894. Section 69 of Calcutta Improvement Act, 1911 authorises the Boardwith the previous sanction of the State Government to acquire lands under the provisions of the Land Acquisition Act, 1894. Section 71 of the Calcutta Improvement Act. 1911 in Clause (b) says that the Land Acquisition Act shall be further modified as indicated in the schedule to the Calcutta Improvement Act, 1911, Sections 6-A and 9 in the schedule to the Calcutta Improvement Act, since the Amendment of the Act in 1955 by the W. B. Act XXXII introduced further modifications in the Land Acquisition Act, 1894 in place of earlier modifications by schedule as it stood in the Calcutta Improvement Act, 1911 before amendment in 1955. We are now concerned in regard to the provisions of the schedule in Section 9 as they stood before and now stands amended by Section 74-C (i) of Calcutta Improvement (Amendment) Act. 1955. Before the amended provisions came into force on 20th October, 1955, Section 9 of the schedule as it stood in Calcutta Improvement Act, 1911 made Section 23(2) of the Land Acquisition Act, 1894 applicable to acquisition of land by the Board. The notification of the declaration under Section 6 of the Land Acquisition Act. 1894 was published in the Gazette on 2nd September, 1954. After framing the Improvement scheme in question its publication was effected in the manner prescribed by Section 43, Sub-sections (1) and (2) of Calcutta Improvement Act, 1911 on 25th May, 1950. The notification of declaration under Section 6 of Land Acquisition Act. 1894 was published on 2nd September, 1954. The Board's scheme was published under Sections 43 (1) and 43 (2) of Calcutta Improvement Act, 1911 on 25th May. 1950. Section 9 of the schedule to the Calcutta Improvement Act of 1911 was amended in 1955 with effect from 20th October, 1955. So the provisions of Section 9 in the schedule to the Calcutta Improvement Act, 1911 must apply in these three appeals as they stood before the amending Act XXXII of 1955 came into force on 20th October, 1955. We do not like to burden our judgment by quoting the provisions of Sections 6-A and 9 of the schedule to Calcutta Imporvement Act, 1911, as they stood before 20th October, 1955. So the material date for the purpose of finding the market value of the lands for payment of compensation and additional compensation Is not 25th May, 1950 but 2nd September, 1954 when there was not in force the amending Act of 1955 (W. B. Act XXXII of 1955). The provisions in Section 6-A of the schedule and in Section 9 thereof, introduced by the amending Act of 1955, are not retrospective but prospective, effective on and from 20th October. 1955 but not on and from 20th May, 1950 but prospectively from 20th October, 1955. The Tribunal made a colossal error Inholding that the aforesaid provisions are retrospective in operation upon a mistaken belief that those are procedural provisions. So, the market value of the acquired land in these cases ought to have been determined, not with reference to 25th May. 1950 but with reference to 2nd September, 1954. So, the market value must have to be determined with reference to the date 2nd September, 1954 and additional compensation at 15% of the market value must also be granted. The Tribunal's decision to the contrary, being wrong, is not accepted by us.

5. The next question is what should be the market value of the acquired premises. The date with reference to which the market value is to be determined is 2nd September. 1954. The Collector determined the market value with reference to 25th May, 1950. The Tribunal upheld the valuation. This is clearly illegal and ultra vires the jurisdiction both of the Collector and of the Tribunal. The Tribunal's wishful thinking that there had not been any increase in land value between 1950 and 1954 is highly illusory. There is not an iota of legal evidence to justify such a wishful conjecture. Accordingly the claimants had no burden to discharge in proving the basis of Collector's valuation wrong. The basis of Collector's valuation was inherently illegal and as such wrong. The Tribunal had no jurisdiction to uphold the Collector's valuation based upon wrong and illegal assumption of jurisdiction. Therefore we are to consider the basis of the claimant's expert's valuation. Here again we find the same error of law as that of the Collector. The Collector considered sales of 1949, 1951 covering four sale transactions of which 5/3 and 5/4 Bagmari Lane sales were of 14th February, 1949 and 4th April, 1949 respectively. Sale of 27G, Bagmari Lane was of 7th December, 1951. The claimants' expert relied on sales of 5/3 and 5/4 Bagmari Lane of 1949. The Tribunal rejected the valuation of the claimants' expert. We have got to reject it since the basis of such valuation was illegal. We have got to reject the Collector's valuation for the self same reason. Although no attempt was made by the Collector and by the claimants to find any sale close to 2nd September, 1954 either anterior or posterior to 2nd September, 1954, the Tribunal upon no evidence observed 'My finding, therefore, is that market value of disputed land was the same in 1954 as it was in 1950' (page line 40 of the paper book in F. A. No. 227 of 1957.) The Government witness No. 1 P. Mukherjee while deposing on 11th March, 1957 said in cross-examination 'Even after 1952 values of land belonging to the Hindus are rising whereas those belonging to the Moslems are on decline and that process Is continuing even uptothe present day', i.e., 12th March, 1957. (page 17 of the paper book in F. A. 227 of 1957. ibid). Board's valuer--D. W. witness No. 2 for the Government did not rely on sales of 5/3 and 5/4 Bagmari Lane though the Collector did so also the claimants' expert (page 31 lines 35-38 of the paper book in F. A. 227 of 1957 ibid). This valuer D. W. did not consider sales after 1950 as he could not get any sale after 1950 but Collector could get sale of 1951 regarding premises No. 27G, Bagmari Lane. But D. W. could be bold enough to say 'all the available sales after 1949 show a fall in land value' (page 31 line 50 of the paper book in F. A. 227 of 1957 ibid). This statement is as much a conjecture as that on the Tribunal and conflicting with the evidence of Government witness No. 1 Mr. Mukherjee. D.W. admitted that his valuation was faulty (page 32 line between 1 to 10 of the paper book in F. A. 227 of 1957 ibid). Upon the Government's own evidence of conflicting character, the Tribunal had no reason to hold that there was no increase of land value between 1950-1954. That finding is wrong both on facts and on law. The claimants' expert's evidence is as much in dependable as that of the Government. The claimant's expert relied, like the Collector on sales of 1949, when according to Government witness No. 1 there had been increase in land value during 1950 to 1957. The claimant's witness did not make any attempt to find any sale after 1949, when according to Government witness No. 1 the land value was Increasing progressively from 1950 to 1957. This is the state of evidence of both sides in record. The basic misconception as to the relevant date with reference to which the market value was to be determined jaundiced the method of valuation adopted both by the Government experts. Collector and by the claimants' expert. So this Court has no legal and factual basis on the record upon which it can effectively assess the market value of the lands in these three appeals according to law. Therefore, the judgment of the Tribunal and the awards in these three appeals must be and are hereby set aside and reversed. The three Claim Cases must go back on remand before the Tribunal. The Collector cannot change his awards, however, wrong their basis may be. The claimants were dissatisfied with Collector's award and came before the Tribunal in the reference cases. To justify the claimant's cases, they should be allowed to lead legal evidence keeping in view that the material date for valuation is 2nd September, 1954 but not 25th May, 1950. The Government if it likes to lead evidence in support of the Collector's award would be leading evidence that would be irrelevant. The Government, however, may cross-examinethe claimant's witnesses If admissible evidence with reference to the material date is led before the Tribunal. The Government may, however, lead rebutting evidence if the claimant leads evidence as we have observed.

6. The claimants however would get 15% additional compensation upon the lawfully determined market value in each of the three reference cases. With the aforesaid directions we remand the three claim cases covered by these three appeals to the Tribunal for decision upon fresh evidence.

7. The appeals are allowed. The appellants in each appeal shall Ret no cost, since they exhibited utter carelessness and perfunctoriness in the original Court. The costs in the three claim reference proceedings before the Tribunal shall abide the final results in the same.

Amaresh Roy, J.

8. I agree.


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