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2003 Supreme(Cal) 66
High Court Of Calcutta
A. N. RAY, HRISHIKESH BANERJI
C.E.S.C.LTD. - Appellant
Versus
RUP KUMAR BARIK - Respondent
A. F. O. D. 11 Of 2002
Decided On : 02/17/2003
C.K.DUTT, DEBAYAN BERA, L.K.Poddar, P.K.ROY, SUCHIT KUMAR BANERJI
In the matter of assessment of compensation, by reference to dealings in similar land, at arms' length, in the same vicinity, is clear and well settled.
Headnote:
LAND ACQUISITION - ASSESSMENT OF COMPENSATION - ADJUSTMENTS TO LAND VALUE - LANDLOCKING - LACK OF FRONTAGE - BELTING - TYPE OF LAND - RENT COMPENSATION - SOLATIUM - INTEREST - LOST LAND.
Fact of the Case:
The land was acquired for the purpose of the C. E. S. C. which was the requiring authority. Under Act II, the acquisition has to be preceded by a requisition for maintenance of supplies essential to public life and in this case supply of electricity was the service involved.
Finding of the Court:
The market price of the land acquired is determined to be Rs. 2. 25 lac per cottah and the referring claimants in all three cases do get an award of compensation of Rs. 2. 25 lac per cottah; In addition thereto, they are entitled to solatium at the rate of 30% on the said land value; They shall also be entitled to additional compensation of 12% per annum on the land value, but not the solatium, from 3-5-95 to 27-3-97 , which deals with ultimate, i. e. Section 28, interest on solatium but does not pronounce that Section 23 (1a) will apply on Section 23 (2) also); The respondents/referring claimants shall also be entitled to rent compensation at the rate of 9% per annum from 16-10-90 to 2-5-95 on the land value computed at the rate (per cottah) of Rs. 2. 25 lac less 25%, we clarify that the land value is to be reduced by 25% and rent compensation shall run thereon for the said period 16-10-90 to 2-5-95; On all the items 1, 2, 3 and 4, the respondents/referring claimants shall be entitled to interest at the rate of 9% per annum from 27-3-97 until payment or payment into Court; if such payment is not made within 17th February, 2004, the interest shall be thereafter at the rate of 15% per annum; and Due credit shall be given in regard to the wiping of liability as regards the above heads, on account of payments or payments into Court already made by the appellants.
Issues: 1. Whether the acquired plot of land is wholly landlocked? 2. Whether the 40ft. wide road on the East is a municipal road? 3. Whether the landlocking of the acquired plot is a fact? 4. Whether the basic price of the land per cottah should be increased? 5. Whether the land price per cottah in regard to the two pieces of property should be made on an exact basis? 6. Whether the adjustments to the land value per cottah are to be made for the differential features existing between the said two pieces of property and the land acquired for CESC? 7. Whether the deduction for largeness is to be made in this case? 8. Whether the adjustment is to be made in regard to the landlocking factor? 9. Whether the adjustment should be made on account of lack of frontage? 10. Whether the deduction should be made for the belting factor? 11. Whether the land development factor is to be considered for deduction in this case? 12. Whether the percentage of appreciation of land value per year during the period of five years is reasonable and acceptable? 13. Whether the respondents will be entitled to 12% interest on the land value from 3-5-95 to 27-3-97? 14. Whether the appellant must pay interest at the rate of 15% per annum on the jumble from 1991 until the payment? 15. Whether the higher rate of 15% interest should compulsorily become payable unless the appellant pays into Court the amount by which our award is in excess of the Collector's award within one year from the date of pronouncement of our judgment? 16. Whether the respondents are entitled to compensation for lost or damaged land?
Ratio Decidendi: 1. The 40ft. wide road on the East is not a municipal road. 2. The landlocking of the acquired plot is a fact which has to be taken as established, and compensation has to be calculated on that basis. 3. The basic price of the land per cottah should be increased. 4. The land price per cottah in regard to the two pieces of property should not be made on an exact basis, but on the basis which the Supreme Court calls, in our respectful opinion, very correctly, the armchair assessment basis. 5. The adjustments to the land value per cottah are to be made for the differential features existing between the said two pieces of property and the land acquired for CESC. 6. The deduction for largeness is to be made in this case ranging between 15% and 25%. 7. The adjustment is to be made in regard to the landlocking factor of 25% or so, which has a little spectrum this way or that. 8. The adjustment should be made on account of lack of frontage of 15% or so. 9. The deduction should be made for the belting factor of the order of 5%. 10. The land development factor is to be considered for deduction in this case. 11. A 10% appreciation of land value per year during the period of five years is reasonable and acceptable. 12. The respondents will be entitled to 12% interest on the land value from 3-5-95 to 27-3-97. 13. The appellant must pay interest at the rate of 15% per annum on the jumble from 1991 until the payment. 14. The higher rate of 15% interest should compulsorily become payable unless the appellant pays into Court the amount by which our award is in excess of the Collector's award within one year from the date of pronouncement of our judgment. 15. The respondents are not entitled to compensation for lost or damaged land.
Final Decision: The L. R. A. Case Nos. 104, 105 and 106/1997 are disposed of in the manner indicated below, along with the three appeals before us :-1. The market price of the land acquired is determined to be Rs. 2. 25 lac per cottah and the referring claimants in all three cases do get an award of compensation of Rs. 2. 25 lac per cottah; 2. In addition thereto, they are entitled to solatium at the rate of 30% on the said land value; 3. They shall also be entitled to additional compensation of 12% per annum on the land value, but not the solatium, from 3-5-95 to 27-3-97 , which deals with ultimate, i. e. Section 28, interest on solatium but does not pronounce that Section 23 (1a) will apply on Section 23 (2) also); 4. The respondents/referring claimants shall also be entitled to rent compensation at the rate of 9% per annum from 16-10-90 to 2-5-95 on the land value computed at the rate (per cottah) of Rs. 2. 25 lac less 25%, we clarify that the land value is to be reduced by 25% and rent compensation shall run thereon for the said period 16-10-90 to 2-5-95; 5. On all the items 1, 2, 3 and 4, the respondents/referring claimants shall be entitled to interest at the rate of 9% per annum from 27-3-97 until payment or payment into Court; if such payment is not made within 17th February, 2004, the interest shall be thereafter at the rate of 15% per annum; and 6. Due credit shall be given in regard to the wiping of liability as regards the above heads, on account of payments or payments into Court already made by the appellants.
( 1 ) WE dispose of by this common judgment and order three appeals from a common judgment and order of the learned Land Acquisition Judge, by which he disposed of three references from the awards of the Collector.
( 2 ) THE acquisition in these cases did not take place under Act I of 1894 butunder the West Bengal Act II of 1948 which is called the West Bengal (Requisition and Acquisition) Act, 1948.
( 3 ) HEREAFTER we shall refer to these Acts simply as Act I and Act II.
( 4 ) THE number of referring claims is quite large and is above 20. They are in three sets. The land was acquired under Act II in May, 1995. The area is upwards of three bighas. One bigha is 20 cottahs and 1 cottah is 720 sq. ft. The land was a part of a 10 bigha tract situated at 156 A, Manicktala Main Road, owned previously by a single common ancestor, namely, Kali Pada Barik, since deceased.
( 5 ) THE Collector made this award sometime in the year 1997 and thereafter the Land Acquisition Judge was approached on reference by the Bariks.
( 6 ) THE Collector's award was on the basis of about 50,000/- rupees compensation per cottah, but the Land Acquisition Judge, on the first hearing raised it to nearly Rs. 5 lakh per cottah.
( 7 ) AT that stage the opposing parties were the State and the Bariks. The land was acquired for the purpose of the C. E. S. C. which was the requiring authority. Under Act II, the acquisition has to be preceded by a requisition for maintenance of supplies essential to public life and in this case supply of electricity was the service involved.
( 8 ) THE C. E. S. C. has since built over the acquired plot of land a 132 K. V. Sub-station called the East Calcutta Sub-station. It uses, roughly speaking, several transformers which step down the load from 132 K. V. downwards for redistribution into different parts of the city located near the Sub-section.
( 9 ) BE that as it may, the requiring authority which in this case would have to pay the money ultimately, being dissatisfied with the Land Acquisition Judge's assessment of compensation, filed a writ application in the High Court at Calcutta complaining against the matter being finalised in their absence. On the 3rd of May, 2000, an order was passed by a Division Bench of our High Court whereby the matter was remitted to the Land Acquisition Judge directing the CESC to be made a party. It was also directed that the parties who had already been examined before the Land Acquisition Judge, would be again presented for cross-examination by the CESC subject to their availability.
( 10 ) THUS, the matter was heard on remittance. The Land Acquisition Judge again made assessments and this time after hearing C. E. S. C. the per cottah price went even higher. However, the Judge felt hesitation in raising the price after hearing C. E. S. C. and thus maintained the earlier figure.
( 11 ) IT is this order from which we are hearing the appeals.
( 12 ) ON behalf of referring claimants, a valuer gave evidence and also exhibited his written report; one Chandra Nath Barik, on behalf of Bariks, also gave evidence.
( 13 ) ONE Ashok Basak, who had given evidence for the State at the first hearing did not present himself once again for cross-examination by the CESC at the second hearing.
( 14 ) THE CESC put in five witnesses on their part and they also called their valuer. We have been taken through the evidence at great length by both the sides. The facts appearing therefrom are discussed below.
( 15 ) CHANDRA Nath Barik admitted that the acquired land was previously used by the washermen of the family for washing clothes and drying those. The CESC has given evidence that at the time of the requisition of the land in 1990, which was five years before the acquisition, the land was low land and filled with water hyacinths. Just outside the boundary of thetract acquired, there was a big pond. The land had to be filled up by copious supply of fly ash which was supplied by the CESC
