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Ram Chandra Sarma and ors. Vs. the State of West Bengal - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 162 of 1967
Judge
Reported inAIR1976Cal453,80CWN688
ActsCalcutta Improvement Act, 1911 - Sections 43(2), 49, 77A(1) and 77A(2); ;Land Acquisition Act, 1894 - Section 6 and 6A
AppellantRam Chandra Sarma and ors.
RespondentThe State of West Bengal
Appellant AdvocateA.N. Gupta and ;Sunit Ghosh, Advs.
Respondent AdvocateB.P. Chatterjee and ;Suprokash Banerjee, Advs.
DispositionAppeal allowed in part
Cases ReferredState of West Bengal v. Asitendra Nath Mitter
Excerpt:
- .....it is directed against the award of the calcutta improvement tribunal affirming the award of the land acquisition collector and rejecting the reference case.2. the premises no. 20, ultadanga main road belonged to the said sm. saraswati devi. on january 13, 1955, a notification under section 43 (2) of the calcutta improvement act, 1911 (hereinafter referred to as the act), was published by the board of trustees for the improvement of calcutta for the street scheme known as scheme no. viii-m (widening of ultadanga main road between the scheme no. v-m and scheme no. vii-m). the owner sm. saraswati devi filed objection to the proposed acquisition of the said premises. on october 20, 1955, the act was amended by the calcutta improvement (amendment) act, 1955 and a new paragraph 1-a which.....
Judgment:

M.M. Dutt, J.

1. This appeal is atthe instance of the referring claimant Sm. Saraswati Devi, since deceased, and it is directed against the award of the Calcutta Improvement Tribunal affirming the award of the Land Acquisition Collector and rejecting the reference case.

2. The premises No. 20, Ultadanga Main Road belonged to the said Sm. Saraswati Devi. On January 13, 1955, a notification under Section 43 (2) of the Calcutta Improvement Act, 1911 (hereinafter referred to as the Act), was published by the Board of Trustees for the improvement of Calcutta for the Street Scheme known as Scheme No. VIII-M (widening of Ultadanga Main Road between the Scheme No. V-M and Scheme No. VII-M). The owner Sm. Saraswati Devi filed objection to the proposed acquisition of the said premises. On October 20, 1955, the Act was amended by the Calcutta Improvement (Amendment) Act, 1955 and a new paragraph 1-A which modified the Land Acquisition Act, 1894, was inserted after paragraph 1 of the schedule to the Act. The new paragraph 1-A is as follows: --

'After Section 6, the following section shall be deemed to be inserted namely:-

6-A. When acquisition is proposed to be made of land comprised within any improvement scheme framed by the Board and published under Section 49 of the Calcutta Improvement Act, 1911-

(i) The publication of a notice of the improvement scheme under sub-section

(2) of Section 43 of the Calcutta Improvement Act, 1911, shall be substituted for end have the same effect as publication of a notification in the Official Gazette and giving public notice of the substance of such notification in the locality under Section 4.

(ii) Proceedings under Section 45 and Sub-section (1) of Section 47 of the Calcutta Improvement Act, 1911, shall be substituted for and have the same effect as proceedings under Section 5-A.

(iii) The publication of a notification under Section 49 of the Calcutta Improvement Act, 1911, shall be substituted for and have the same effect as a declaration under Section 6.'

3. The Collector valued the land of the disputed premises having an area of 9 bighas 14 cottahs 14 chhataks at Rs. 4,56,981.87 at the rate of Rs. 2,345/-per cottah on average, the structures at Rs. 2,58,000/- and the trees at Rs. 80/-. He awarded a total compensation of Rs. 7,15,061.87. The said Sm. Saraswati Devi had the matter referred to the Calcutta Improvement Tribunal on a petition of reference. Before the Tribunal, she claimed the value of the land at the rate of Rs. 3,200/- per cottah on the average and that of the structures at Rs. 3,00,000/-. She also claimed statutory allowance of 15% as allowed under Section 23(2) of the Land Acquisition Act. The claim for the higher valuation of the structures was not pressed before the Tribunal at the hearing.

4. In regard to her objection to the valuation of land made by the Collector, it was contended that the Collector was wrong in determining the value of the acquired land as on the date of the notification under Section 43 (2). It was urged that the relevant date was the date of the publication of the notification under Section 49 of the Act, that is, November 5, 1959. In support of her claim for valuation of the acquired land of the disputed premises No. 20, Ultadanga Main Road, she examined one Sukumar De, a Chartered Surveyor and Valuer (P. W. 1). According to him, the total value of the acquired land on January 13, 1955, was Rs. 5,42,000/- and on November 5, 1959 was Rs. 6,03,000/-, that is, 15% more. He relied on the judgment of the Tribunal in Case No. 37 of 1952 dated January 30, 1954, regarding premises No. 107, Ultadanga Main Road and an award of the Collector in respect of portion of premises No. 109-B, Ultadanga Main Road, as the basis of thevaluation made by him. On behalf of the respondent, the State of West Bengal, the judgment of the Tribunal in Case No. 43 of 1962 relating to premises No. 81, Ultadanga Main Road was relied on.

5. The Tribunal after considering the evidence of Sukumar De and that of Bhabatosh Roy, the Senior Valuation Officer, Calcutta Improvement Trust and the said judgments, held that the market value of the acquired land of the disputed premises was Rs. 3,97,340/- and that the Collector over-estimated the market value and awarded compensation in excess of the same. As to the date relevant for the assessment of the market value of the acquired land, the Tribunal took the view that the market value should be assessed as on January 13, 1955, the date of the publication of the notification under Section 43 (2). As the Collector's award could not be reduced, the Tribunal affirmed the same and dismissed the reference case. Hence, this appeal.

6. During the pendency of the appeal, Saraswati Devi died and in her place the present appellants were substituted,

7. As the appeal is under Section 77-A (1) (b) of the Act, and in view of Section 77-A (2), it is confined to the following grounds, namely:-- (i) the decision being contrary to law or to some usage having the force of law; (ii) the decision having failed to determine some material issue of law or usage having the force of law and (iii) a substantial error or defect in the procedure provided by the Act which may possibly have produced error or defect in the decision of the case, upon the merits. The first question to be considered is whether the valuation should be made as on January 13, 1955 or on November 5, 1959. Before the Act was amended on October 20, 1955, which effected the modification of the Land Acquisition Act by the insertion of Section 6-A referred to above, it provided for the publication of a notification under Section 4 of the Land Acquisition Act after the notification under Section 49 of the Act and thereafter for the publication of a declaration under Section 6 of the Land Acquisition Act. It also provided that the compensation to be awarded was the market value of the land as on the date of the declaration under Section 6. By the amendment of the Act the publication of the notification under Section 43 (2) of the Act has been substituted for a notification under Section 4 of the Land Ac-quisition Act and the publication of the notification under Section 49 of the Act has been substituted for the: declaration under Section 6 of the Land Acquisition Act. It is contended on behalf of the appellants that the said Amendment Act having been enacted after the publication of the notification under Section 43 (2) of the Act on January 13, 1955, the appellants are entitled to the market value as on the date of the publication of the said notification under Section 49, that is, November 5, 1959, which, under the Amendment Act, shall be deemed to be the declaration under Section 6. It is argued that the amendment made by the insertion of Section 6~A was not retrospective and as the acquisition proceedings commenced on the publication of the notification under Section 43 (2), the right to claim the market value of the acquired land as on the date of the publication of the notification under Section 49 vested in the owner of the land. In support of this contention, the appellants have placed reliance on three unreported judgments of this Court which are -- (1) Jyotish Chandra Mitra v. State of West Bengal, in F. A. No. 71 of 1961 disposed of on July 15, 1970 (Cal), (S.K. Chakravarti end S.K. Datta, JJ.), (2) Messrs. Nava Bharat Vanijya Ltd. v. State of West Bengal, in F. A. Nos. 608 and 609 of 1961, disposed of on Aug. 12, 1970 (Cal), (S.K. Chakravarti and S.K. Datta, JJ.) and (3) Kalipada Sen v. State of West Bengal, in F. A. No. 519 of 1963, disposed of on September 15, 1971 (Cal), (A.C. Gupta and Amiya Kumar Mookerjee, JJ.).

8. In Jyotish Chandra Mitra's case P, A. No. 71 of 1961, D/- 15-7-1970 (Cal) the notification under Section 4(1) of the West Bengal Land Development and Planning Act, 1948, was published on August 4, 1949 and possession of the land was taken on November 21, 1949. Subsection (2) of Section 8 of the Act was amended by the West Bengal Land Development and Planning (Amendment) Act, 1955 to the effect that no amount referred to in Sub-section (2) of Section 23 of the Land Acquisition Act shall be included in the award. It was held that the amendment of Sub-section (2) of Section 8 of the Act was not retrospective in operation and, as such, the claimant was entitled to the additional compensation of 15% under Section 23(2) of the Land Acquisition Act. That decision was followed by the same Bench in the case of Nava Bharat Vanijya Ltd., F, A. Nos. 608 and 609 of 1961, D/- 12-8-1970 (Cal).

It was also followed in Kalipada Sen's case F. A. No. 519 of 1963, D/- 15-9-1971 (Cal) referred to above. On the strength of the above unreported Bench decisions, it has been argued on behalf of the appellants that the insertion of Section 6-A in the Land Acquisition Act made by the Calcutta Improvement (Amendment) Act, 1955 is not retrospective in operation, and the appellants are entitled to the market value of the acquired land as on the date of the publication of the notification under Section 49 of the Act which has been substituted for a notification under Section 6 of the Land Acquisition Act and not on the date of publication of the notice under Section 43 (2). On the other hand, Mr. Chatterjee, learned Advocate appearing on behalf of the respondent State of West Bengal, submits that the new Section 6-A having been introduced before the publication of the notification under Section 49 of the Act, it will apply for the purpose of computation of the compensation. In other words, he submits that the market value should be calculated as on the date of the publication of the notice under Section 43 (2) which is substitute for a notice under Section 4 of the Land Acquisition Act. Second it is contended by him that the appellants cannot both rely on the new provision of Section 6-A for the purpose of treating the notification under Section 49 of the Act as a declaration under Section 6 of the Land Acquisition Act and contend that Section 6-A is not retrospective in operation. He has also placed reliance on a Bench decision of this Court in Muneswar Ram v. Second Land Acquisition Collector, (1967) 71 Cal WN 78. In that case, the notice under Section 43 (2) was published on May 12/19, 1955. Section 6-A of the Land Acquisition Act was introduced by the Amendment Act on October 20, 1955 and the sanction of the Government under Section 48 was published under Section 49 of the Act on December 29, 1956. In view of the introduction of Section 6-A there was no notification under Section 4, enquiry under Section 5-A and declaration under Section 6 of the Land Acquisition Act. It was contended that as the provisions of Sections 4, 5-A and 6 of the Land Acquisition Act were not complied with the acquisition was illegal. It was held by Sinha, J. (as he then was) that Section 6-A was not retrospective in operation and that the improvement scheme under which the land was acquired having been sanctioned by the Government after theintroduction of Section 6-A, it was a post amendment scheme and, accordingly, Section 6-A would apply.

9. Before the Act was amended by insertion of the new Section 6-A in the Land Acquisition Act, the market value was to be assessed as on the date of the publication of a declaration under Section 6 of the Land Acquisition Act. It has not been disputed on behalf of the respondent that the introduction of Section 6-A has not been made with retrospective effect. But the question is whether or not on the publication of the notice under Section 43 (2), the appellants acquired a right to get compensation for the acquired land on the basis of the market value as on the date of the notification under Section 49 which is equivalent to a declaration under Section 6 of the Land Acquisition Act. It is contended on behalf of the appellants that the compulsory acquisition proceedings really start after the publication of the notice under Section 43 (2) before the Amendment Act. We are unable to accept this contention. In our view, so long as the Government does not sanction the scheme there is no proceeding for acquisition. This is also the view of Sinha, J., as has been expressed in Muneswar Ram's case (1967) 71 Cal WN 78 referred to above. It has been observed by his Lordship in that case that first of all, a scheme is mooted, then objections are heard and it is then finalised; Government either sanctions the scheme or a modified scheme, and it is only thereafter that compulsory acquisition proceedings of land are taken in hand. In our opinion, the publication of the notice under Section 43 (2) does not vest any right in the claimant to claim compensation on the basis of the market value as on the date of the declaration under Section 6 of the Land Acquisition Act. In the above unreported Bench decisions, Section 8 (2) of the West Bengal Land Development and Planning Act was amended after possession of lands in question had been taken. In other words, the acquisition was complete and the only thing that was to be done was the assessment of compensation. After the acquisition is complete the claimant could claim compensation to which he was entitled before Section 8 (2) was amended. But in the instant case, even before the notification under Section 49 was published, the Act was amended and Section 6-A of the Land Acquisition Act was introduced under which the notice under Section 43 (2)would be treated as equivalent to a notification under Section 4 of the Land Acquisition Act and the notification under Section 43 was made equivalent to a declaration under Section 6 of the Land Acquisition Act. In the above view which we take, we do not think that there is any substance in the contention of the appellants that they are entitled to the market value of the acquired land as on the date of the publication of the notification under Section 49.

10. Now we may come to the merits of the case. It is not disputed that by belting method the total units of the disputed premises in terms of solid land of the first belt would be 134, P. W, 1 Sukumar De, the Chartered Surveyor and Valuer of the appellants, firstly relied on the award in respect of the premises No. 109-B, Ultadanga Main Road. By the said award, the market value of the said premises was assessed at Rs. 1,600/- per cottah on the average. By belting method and by conversion of different kinds of land of the first, second and the third belt P. W. 1 came to the finding that the rate of the front belt unit of the said premises would be Rupees 3,747/- per unit. On account of some advantages and disadvantages of the disputed premises he made certain additions and deductions and the net addition that was made by him to the said value of Rs. 3,747/- per unit was 7% and it came to the figure of Rs. 4,009/- as the value per unit of the disputed premises. Regarding the judgment of the Tribunal in Case No. 37 of 1952, relating to premises No. 107, Ultadanga Main Road, it appears that although in that case, the Tribunal found that the value of the front belt unit was Rs. 3,184/- per cottah, it had to make some additions and deductions on account of advantages and disadvantages of the said premises and valued the land of the said premises at Rs. 3,050/- per cottah. It may be stated that the premises No. 107, Ultadanga Main Road was acquired sometime in 1949. P. W. 1 took into consideration the valuation of the said premises No. 107. He added 8% on account of the disputed premises being south facing with better development and 1 1/2% for drainage facilities in the disputed premises. He also added 25% because of the rise of the land value from 1949 to 1955 and deducted 10% for largeness in area and 1/2% for temporary storage of pail tubs. The net addition which was made by him to the value of said premises No. 107 was 24% and hearrived at the valuation of the disputed premises at Rs. 3,184/- per unit. He took the mean of the two valuations of Rupees 3,184/- per unit and Rs. 4,009/- per unit which came to Rs. 3,974/- per unit.

11. Regarding the premises No. 109-B, Ultadanga Main Road, the Tribunal took the view that the valuation made by the award of the Collector was not comparable to that of the disputed premises. It appears that the premises No. 109-B, Ultadanga Main Road was acquired at the instance of the Refugee Rehabilitation Department of the Government of West Bengal. That department was in urgent need of the said premises for establishing a market and took possession of the said premises amicably from the owners thereof on April 25, 1956. The proceedings under the Land Acquisition Act were started only to regularise the said amicable taking of possession. The price of the land was also amicably set-tied between the Commissioner of the Refugee Rehabilitation Department and the owners long before the initiation of the acquisition proceedings. The Tribunal took the view that it was not unlikely that the price paid by the Refugee Rehabilitation Department was higher than the market value. Further, it was found by the Tribunal that there was a reference by the owners of the said premises No. 109-B, Ultadanga Main Road to the learned District Judge under Section 18 of the Land Acquisition Act, but that reference was rejected. The owners had preferred an appeal to this court and that was pending. On the above grounds, the Tribunal was of the view that it would not be proper to accept the accepted award relating to premises No. 109-B as the basis for the determination of the market value of the acquired land of the disputed premises.

12. Mr. Gupta, learned Advocate appearing on behalf of the appellants has strenuously urged that the Tribunal committed an error of law in holding that the award relating to premises No. 109-B could not be the basis for the determination of the market value of the disputed premises. It has been already stated at the outset that as the appeal is one under Section 77-A (1) (b) of the Act, the award of the Tribunal can be assailed only on points of law as provided in Section 77-A (2). In our opinion, when a Tribunal rejects upon consideration an award or a transaction of sale or any other evidence of the market value on a finding that itis not to be relied on as the basis for the determination of the valuation of the disputed land, such a finding of the Tribunal is a finding of fact and cannot be assailed in an appeal under Section 77-A (1) (b) of the Act even though the reasons given by the Tribunal are erroneous. In the instant case, the Tribunal has- rejected the consideration of the award relating to the premises No. 109-B as the basis for the determination of the market value of the disputed premises on two grounds. Even assuming that the grounds relied on by the Tribunal are erroneous, still this Court cannot interfere with the finding of the Tribunal. But all these turn to be academic, for the Tribunal has also taken into consideration the award in respect of the premises No. 109-B and has come to the finding that it does not support the valuation of the disputed premises as made by the appellants' expert (P. W. 1). According to the Tribunal, the market value of premises No. 109-B would be Rs. 3,200/-per cottah of solid land in the first belt. This finding of the Tribunal is a finding of the fact and cannot be challenged. So there is no merit in the contention of the appellants that the valuation of the disputed premises has not been made on the basis of the accepted award.

13. Both the Government and theTribunal placed reliance on the valuation of premises No. 81, Ultadanga Main Road made by the Tribunal in Case No. 43 of 1962. In that case, the Tribunal took into consideration the valuation of premises No. 107, Ultadanga Main Road as the basis for the determination of the value of the said premises No. 81. On behalf of the appellants, it was contended that the valuation of the said premises No. 107 as decided in Case No. 37 of 1952 should be independently considered. It was, however, observed by the Tribunal that as the valuation of the said premises was considered by the Tribunal in Case No. 43 of 1962 relating to premises No. 81, Ultadanga Main Road, it need not be considered over again. Mr. Gupta submits that the Tribunal has committed an error of law in making that observation. Again the said observation of the Tribunal and the submissions made on behalf of the appellants are academic, for the Tribunal also independently considered the valuation of premises No. 107. It has been already stated that according to the Expert (P. W. 1) 25% should be added to the value of premises No. 107 on account of the rise in price of land from 1949 to1955, 10% should be deducted for largeness in area and 1/2% for the existence of the pail depot in front of the disputed premises. In the opinion, of P. W. 1 there should be a total addition of 24% to the valuation of premises No. 107. The Tribunal, however, was of the opinion that 4% should be added for the better development and the disputed premises being south facing, and that nothing should be added for the drainage facilities in the disputed premises. Regarding the rise in price of land the Tribunal was of the view that only 8% should be added, Thus the Tribunal made a total addition of 12%. In our view the question of additions and deductions is a question of fact and arguments relating to the findings of the Tribunal on that question cannot be entertained. It is, however, contended on behalf of the appellants that in the judgment of the Tribunal relating to premises No. 107, the Tribunal itself deducted 8% as the said premises was not south facing, but in the instant case, the Tribunal only added 4% as the disputed premises is south facing. It is submitted on behalf of the appellants that at least in that regard, the Tribunal committed an error of law. We do not think that the Tribunal committed an error of law as contended on behalf of the appellants. The Tribunal considered its judgment relating to premises No. 107 and upon the consideration of the same it was of the view that only 4% should be added on account of the disputed premises being south facing. In our opinion, the determination of the question whether there should be an addition of 4% or 8% does not involve any point of law and, accordingly, we are unable to accept the contention of the appellants.

14. The Tribunal has not allowedto the appellants the solatium of 15% as provided in Section 23(2) of the Land Acquisition Act in view of the provision of paragraph 9 (1) of the Schedule to the Calcutta Improvement Act. Paragraph 9 (1) has since been declared ultra vires Article 14 of the Constitution and struck down as void by a Division Bench of this Court consisting of A.C. Gupta and Chandra JJ., in State of West Bengal v. Asitendra Nath Mitter, : AIR1973Cal478 . This decision has been followed by another Bench of this Court in Board of Trustees for the Improvement of Calcutta, v. Calcutta Improvement Tribunal, : AIR1975Cal87 . In view of these two decisions of this Court, we hold that the appellants are entitled to 15% of additional compensation on the market value of land as provided in Section 23(2) of the Land Acquisition Act, as claimed by them. No other point has been argued on behalf of the appellants.

15. In the result, the finding of the Tribunal are hereby affirmed. The judgment and decree are, however, modified to this extent only that the appellants shall be entitled to the solatium of 15% on the market value of land and structure as assessed by the Tribunal and interest at the rate of six per cent, per annum on the amount of solatium from the date of Collector's taking possession. The Collector is directed to make payment to the appellants within four months of the receipt of the modified award.

The appeal is allowed in part, but there will be no order as to costs.

Sharma, J.

16. I agree.


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