1972 Supreme(Cal) 277

HIGH COURT OF CALCUTTA
Gupta, Chanda
STATE OF WEST BENGAL - Appellant
Versus
ASITENDRA NATH MITTER - Respondent
Appeal From Original Decree 105  Of  1960
Decided On : DECEMBER 22, 1972

Paragraph 9 (1) of the schedule to the Calcutta Improvement Act, 1911, which precludes the application of Section 23 (2) of the Land Acquisition Act in the case of acquisition of land for the purposes of the Calcutta Improvement Act, cannot be justified on the ground of reasonable classification and is, therefore, ultra vires and void.

Headnote:

LAND ACQUISITION - Calcutta Improvement Act, 1911 - Section 72 - Tribunal's decision on market value of acquired land - Legality - Consideration of comparable sales and awards - Principles of valuation - Validity of paragraph 9 (1) of the Schedule to the Act - Vires - Article 14 of the Constitution.

Fact of the Case:

Two appeals by the State of West Bengal against a decision of the Tribunal constituted under Section 72 of the Calcutta Improvement Act, 1911, disposing of two references arising out of the acquisition of premises No. 36-B, Barrackpore Trunk Road under the Calcutta Improvement Trust Bustee Rehousing Scheme No. 1. The claimants are, in respect of lot A, Asitendra Nath Mitter, and in respect of lots B and D, Asitendra Nath Mitter.

Finding of the Court:

The tribunal committed no error of law in treating 22-B Lock Gate Road as a comparable unit. The purpose for which the plot was sold did not make any difference to the basis of valuation. The tribunal was not in error in discarding Ext. D. The tribunal rightly pointed out that an award when accepted by the claimant can be said to be evidence of proper market value because acceptance means that the price offered by the Collector is admitted to be fair, but an unaccepted award does not show any such concurrence of minds and has therefore very little evidentiary value. Paragraph 9 (1) of the schedule to the Calcutta Improvement Act, 1911 infringes the equality clause in Article 14 and is therefore void. The claimants are accordingly entitled to the solatium of 15 per cent, under Section 23 (2) of the Land Acquisition Act.

Issues: 1. Whether the tribunal erred in law in treating 22-B Lock Gate Road as a comparable unit for determining the market value of the acquired land? 2. Whether the purpose for which the plot was sold made any difference to the basis of valuation? 3. Whether the tribunal was in error in discarding Ext. D? 4. Whether the tribunal rightly pointed out that an award when accepted by the claimant can be said to be evidence of proper market value? 5. Whether the tribunal was in error in discarding Ext. B? 6. Whether paragraph 9 (1) of the schedule to the Calcutta Improvement Act, 1911 infringes the equality clause in Article 14 and is therefore void?

Ratio Decidendi: 1. The tribunal considered the evidence and found that 22-B Lock Gate Road enjoys a more advantageous position and allowed certain deductions on that account to assess the market value of the acquired premises. There is no evidence, nor was it argued, that a petrol pump cannot be installed on a plot which is suitable as a building site. The purpose for which the plot was sold did not make any difference to the basis of valuation. 2. The tribunal relied on the evidence of witness No. 3 for the claimants, Mr. H. K. Sarkar, who was examined as an expert, to hold that the lands on Barrackpore Road are usually sold for residential purpose and their market value is determined on that basis. There is no evidence whatsoever to justify the claim that the purchaser was under a compulsion to buy this plot of land and therefore paid a price higher than the normal market value. 3. The transaction evidenced by Ext. D was not reliable as the rate per cottah works out to a figure which is not only less than the rate at which the Collector valued the acquired premises but is also lower than the rate at which witness No. 3 for the State, Mr. Bhabatosh Roy, who was examined as an expert, valued the acquired premises. 4. An award when accepted by the claimant can be said to be evidence of proper market value because acceptance means that the price offered by the Collector is admitted to be fair, but an unaccepted award does not show any such concurrence of minds and has therefore very little evidentiary value. 5. The tribunal was not in error in discarding Ext. B as there was no serious complaint about its rejection on behalf of the State. 6. The Calcutta Improvement Act, 1911 makes provision for file improvement and expansion of Calcutta inter alia, by opening up congested areas, laying out or altering streets, providing open spaces for purposes of ventilation or recreation, demolishing or constructing buildings, clearing bustees, executing housing schemes and schemes for the rehousing of persons displaced by the execution of improvement schemes, acquiring land for the said purposes and all works relating thereto. Paragraph 9 (1) of the schedule to the Calcutta Improvement Act, 1911 is violative of Article 14 of the Constitution because the same land or similar lands in the city of Calcutta could have been acquired for the same purpose or for some other public purpose under the Land Acquisition Act, 1894 and in either case the claimant would have been entitled to the 15 per cent solatium under Section 23 (2) of the Land Acquisition Act.

Final Decision: Both the appeals are dismissed and the cross-objections are allowed. The tribunal will award a further sum of 15 per cent, on the market value in each case. There will be no order for costs.