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Jogendra Nath Chatterjee and ors. Vs. State of West Bengal - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. Nos. 346 and 347 of 1966
Judge
Reported inAIR1971Cal458,75CWN737
ActsLand Acquisition Act, 1894 - Sections 4(1) and 23
AppellantJogendra Nath Chatterjee and ors.
RespondentState of West Bengal
Appellant AdvocateShyamacharan Mitter and ;Shyamaprasanna Roy Chowdhury, Advs.
Respondent AdvocateBirendra Kr. Roy Chowdhury and ;Amal Kumar Basuchowdhury, Advs.
DispositionAppeals allowed
Cases ReferredHanthawaddy v. Sulaiman Adamjee
Excerpt:
- .....is the subject-matter of f.a. 347/66, situate in mouja gopinathpur in the district of burdwan. the land acquisition collector awarded compensation at the rate of rs. 1,000/- per acre with respect to plot no. 1402 as began land, for plot no. 1422 at rs. 60/- per acre as road, and rs. 710/- per acre for plot no. 1509 as danga land. the claimant was dissatisfied with the collector's award and took a reference before the land acquisition judge. in the petition of reference the claim appears to have been made for rs. 12,000/- with respect to the began land and rs. 24,000/- for the danga land, on account of the potential value of the lands. the learned land acquisition judge affirmed the collector's award and rejected the claim. the claimant being aggrieved preferred these two appeals, f. a......
Judgment:

Amiya Kumar Mookerji, J.

1. These two appeals are by the referring claimant and they arise out of a reference under Section 18 of the Land Acquisition Act. The lands acquired were C. S. Plots Nos. 1402 and 1422 forming the subject-matter of F.A. 346/66, and C.S. Plot No. 1509, which is the subject-matter of F.A. 347/66, situate in mouja Gopinathpur in the district of Burdwan. The Land Acquisition Collector awarded compensation at the rate of Rs. 1,000/- per acre with respect to plot No. 1402 as began land, for plot No. 1422 at Rs. 60/- per acre as Road, and Rs. 710/- per acre for plot No. 1509 as danga land. The claimant was dissatisfied with the Collector's award and took a reference before the Land Acquisition Judge. In the petition of reference the claim appears to have been made for Rs. 12,000/- with respect to the began land and Rs. 24,000/- for the danga land, on account of the potential value of the lands. The learned Land Acquisition Judge affirmed the Collector's award and rejected the claim. The claimant being aggrieved preferred these two appeals, F. A. 346 of 1962 in his capacity as a Shebait to the deity and F. A. 347 of 1962 in his personal capacity.

2. It appears that the aforesaid lands were acquired pursuant to a notification under Section 4(1) of the Land Acquisition Act (hereinafter referred to as the Act) issued on 3rd June, 1958. Prior to the said notification, another notification under Section 4(1) of the Act was issued on the 12th Jamiary, 1955 with respect to the lands in the district of Burdwan but (he exact location of the lands had not been specified in the said notification. In determining the amount of compensation the learned Land Acquisition Judge took into consideration the market value of the land at the date of the publication of the first notification dated 12-1-55.

3. Mr. Mitter, the learned Advocate appearing on behalf of the appellant, contended that the learned Judge was basically wrong in determining the compensation on the basis of the first notification dated 12-1-55. According to Mr. Mitter, notification issued by the Government on January 12, 1955, set out the general route for survey of the lands likely to be needed for the public purpose, but it did not specify the locality in which the land was needed. In pursuance to the said notification, no objection could possibly be submitted nor any inquiry could be made by the Collector under Section 5A of the Act because particulars of the land or locality were not mentioned in the said notification. Mr. Milter, therefore, submitted that the learned Judge erred in holding that the relevant date for ascertaining the market value of the land was the date of the first notification issued on 12-1-55. Mr. Mitter further contended that the relevant notification for determination of compensation under Section 23 of the Act was the notification dated 3rd of June, 1958, in which particulars of the acquired plots had been specified. In support of his contentions Mr. Mitter referred to an unreported decision of the Supreme Court in a case between the same parties (Civil Appeal No. 654 of 1966, Bhutnath Chatterjee v. State of West Bengal) decided on 14-3-1969 --(since reported in AIR 1969 NSC 73), wherein a notification dated 12-1-55 under Section 4(1) of the Act was construed. Another decision of the Supreme Court--Narendrajit Singh v. State of Uttar Pradesh, reported in was also relied on by Mr. Mitter.

4. In the unreported decision of the Supreme Court referred to by Mr. Mitter, the learned Judges of the High Court assumed that in the absence of special circumstances when there were successive notifications under Section 4(1) of the Act in respect of the same land, the first notification will govern the assessment of the market value under Section 23 of the Land Acquisition Act. The Supreme Court held that the question in each case was whether there was any intention to supersede the previous notification, and if the Government did not choose to explain the reasons which persuaded it to issue a second notification, the court might be justified in inferring that it was intended to supersede the earlier notification by the later notification.

5. In the instant case there is no evidence that pursuant to the first notification any objection was invited or any enquiry was made by the Collector under Section 5A of the Act. No reason was also stated by the Government why it was necessary to issue a second notification.

6. In Narendrajit's case () the Government of Uttar Pradesh issued a notification on 15th October, 1960, purporting to be one under Section 4 of the Act to the effect that the land mentioned in the Schedule was needed for a public purpose. The Schedule contained particulars about the district, pargana, mouja and the approximate area, but no further particulars of the land were given. All that was mentioned by way of a note was, that, the plan of the land might be inspected in the office of, the Collector of Rampore. As no details were given, the only indication about the locality of the land was possibly the district of Rampore inasmuch as the plan of the land was to be found in the office of the Collector of the said district. In construing the said notification the Supreme Court held that issue of notification under Sub-section (1) of Section 4 is a condition precedent to the exercise of any further powers under the Act and a notification which does not comply with the essential requirements of that provision of law must be held to be bad. Section 4(1) does not require that the identity of the land which may ultimately be acquired should be specified, but it enjoins upon the Government the duty to specify the locality in which the land is situate.

7. Mr. Roy Chowdhury, the learned Advocate appearing for the respondent, argued that as the first notification was not cancelled by the subsequent notification, the first notification should be taken to be the basis for determination of compensation under Section 23 of the Act. According to Mr. Roy Chowdhury, the first notification was issued for the purpose of preliminary survey of the land in order to find out its suitability for the purpose for which the land would be required. Publication of notification under Section 4(1) of the Act makes it lawful for any officer authorised by the Government to enter upon the land and do various acts as detailed under Section 4(2) of the Act. The second notification, Mr. Roy Chowdhury contended, was the continuation of the first notification in which only the plots were mentioned because it was not possible to specify the plots in the first notificiation. In support of his contentions, Mr. Roy Chowdhury referred to a decision of the Rangoon High Court, Collector, Hanthawaddy v. Sulaiman Adamjee, reported in AIR 1941 Rang 225.

8. A notification under Section 4(1) of the Act does not require the land to be defined or identified. Neither the plots nor their boundaries have to be specified but the locality must be stated, otherwise objections could not be submitted under Section 5A of the Act. In the instant case, the locality had not been specified in the first notification and the Government also did not state reasons which persuaded it to issue a second notification. So, it must be presumed that the earlier notification was superseded by later notification.

9. Therefore, in view of the above decisions of the Supreme Court, we hold that the second notification dated 3-6-1958 is the relevant notification for determination of compensation under Section 23(1) of the Act.

10. Mr. Mitter next contended that nine documents of sale (Ext. 1-1(h)) of similar lands with similar advantage in the neighbourhood were produced by the referring claimant. Those sale deeds were registered between 11-11-54 to 10-2-58. The learned Land Acquisition Judge rejected those documents on the ground that the claimant selected only such documents as would go to show high value of land and their distance from the acquired land also had not been proved.

11. The claimant appellant in this Court filed an application under Order 41, Rule 27, Civil Procedure Code, for taking cadastral survey and settlement map as an additional evidence. We allow the appellant's prayer for additional evidence as we require the said C. S. Map in order to satisfy ourselves about the exact distance between the acquired land and the lands in respect of which the sale deeds were filed by the claimant. The said C. S. Map is marked as Exhibit Z.

12. The best method of determination of the market price of the plots of land under the acquisition is to rely on instances of sale of the same land or portion of it near about the date of notification under Section 4(1) of the Act. The next best method is to take into consideration the instances of sale of the adjacent lands made shortly before and after the notification. When the market value is to be determined on the basis of the instances of sale of land in the neighbouring locality, the potential value of the land need not be separately awarded because such sales cover the potential value.

13. In Ext. 1 (h) we find that rear portion of Dag No. 1509 was sold on 18-1-56 at Rupees three thousands per acre.

The front portion of the said plot is on the Feeder Road connecting the Grand Trunk Road. Obviously the value of such land would be Higher in comparison with the back portion. It is difficult to lay down any hard and fast rule as to what is the relative proportion of value as between the back land and front land, but it is at least reasonable in seeking to fix that proportion to take into consideration how far the land stands from the Road. It appears from the C. S. Map that the rear portion of plot No. 1509 is far away from the road. So, taking into consideration this factor, we value the acquired front portion or plot No. 1509 at the rate of Rs. 6,000/- per acre, i.e., double the value of the back portion.

14. Plot No. 1402 is a garden land. Only Ext. 1 (a), the sale deed dated 10-9-55 with respect to Dag No. 1033 relates to the garden land. It appears from the C. S. Map that plot No- 1663 is just on the opposite side of plot No. 1422, the Feeder Road and two small plots Nos. 1634 and 1635 intervene between them. The plot No. 1633 has no direct communication with the road whereas the acquired plot No. 1402 is connected with the Feeder Road. In the sale deed, plot No. 1633 is valued at Rs. 6,000/- per acre. So, on that basis, plot No. 1402 can reasonably be valued at Rs. 6,000/- per acre and we value the same accordingly.

15. With regard to plot No. 1422 which is a pathway, we affirm the valuation at Rs. 60/- per acre as made by the learned Land Acquisition Judge.

16. In the result, these two appeals are allowed. The award of the learned Land Acquisition Judge is set aside and the case is sent back to the Land Acquisition Collector to make a fresh award with respect to plots Nos. 1509 and 1402 at Rs. 6,000/- per acre. The appellant would be entitled to interest on the enhanced amount at the rate of 6% per annum.

17. There will be no order as to costs

Gupta, J.

18. I agree.


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