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2023 Supreme(Cal) 829
IN THE HIGH COURT AT CALCUTTA
SOUMEN SEN, SIDDHARTHA ROY CHOWDHURY, JJ.
State of West Bengal – Petitioner
Versus
Dilip Kumar Jaiswal – Respondent
FA 380 of 2009 with COT 3975 of 2006 with FAT 651 of 2018
Decided On : 03-08-2023
For the State of West Bengal : Mr. Tapan Kumar Mukherjee, Mr. Supratim Dhar.
For the Respondents: Mr. Sabyasachi Chowdhury, Ms. Urmila Chakraborty, Mr. Amit Meharia, Ms. Paramita Banerjee, Ms. Subika Paul, Ms. Amrita Das, Mr. Jaydip Kar, Mr. Aditya Kanodia.
Compensation payable under the Land Acquisition Act, 1894 is to be computed in terms of Section 23 and 24 of the Act. The market value has to be determined as on the date of publication of notification under Section 4 (1) of the Land Acquisition Act, after taking into consideration what is stated under Section 23(1), 23(1A) and 23 (2) and excluding the considerations as stated under Section 24 of the Act.
Headnote:
LAND ACQUISITION ACT - Acquisition of land with commercial establishments - Compensation - Market value - Solatium - Additional compensation - Entitlement of referring claimants - Deduction from compensation - Encumbrances - Valuation of land and structure - Depreciation - Statutory benefits.
Fact of the Case:
The first L.A. Collector, Kolkata acquired the homestead land with a structure at premises no. 77, Park Street, Kolkata measuring about 10 cottahs 5 chittacks 24 square feet with commercial establishments on the ground floor as per notification No. 8-L.A. (II) dated 6th November, 1989 published in part I of the Calcutta Gazette vide no. 7550 L.A. (II) dated 21st July, 1990. The purpose of acquisition of such property was to house the office of M/s Heavy Engineering Corporation Limited (Government of India Enterprise) and an award was made under Section 23 (1a) of the Land Acquisition Act, 1894.
Finding of the Court:
1. The impugned judgement passed by learned L.A. Judge in proceeding no. 13 of 2000 is modified as aforesaid. 2. The erstwhile landowners are entitled to get a sum of Rs. 96,26,256/-as compensation instead and place of Rs. 1,02,84,928/-. 3. In addition thereto they are entitled to statutory benefits permissible under the law in view of Section 23 (1A), 23(2) and 28 of the Land Acquisition Act, 1894.
Issues: 1. Whether the requiring body Heavy Engineering Corporation Limited was not before the learned L.A. Judge to represent the case? 2. Whether the learned Trial Judge while assessing the land value took the average of the market value and also relied upon the evidence of Mr. Arun Chatterjee, who assisted the Court in fixing the market value, however, without visiting the property in question? 3. Whether Section 16 of the Land Acquisition Act, 1894 enunciates that when the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government free from encumbrances? 4. Whether the judgement passed by learned L.A. Judge in L.A. proceeding 13 of 2000, therefore, suffers from infirmity and may be set aside with an order of remand or in the alternative valuation of Sandip Kumar De may be accepted? 5. Whether the equivalent amount so assessed by the valuer may be paid to the land losers out of the amount to the tune of Rs. 1,00,47,874.70/-deposited by H.E.C.L. and balance amount may be returned to Heavy Engineering Corporation Limited? 6. Whether the chartered valuer was not justified in determining the age of the building as 34 years as on 2015 when he assessed the valuation of the land and building, instead of 1989, for the purpose of assessing the depreciation value of the building?
Ratio Decidendi: 1. The H.E.C.L. has been impleaded as respondent in the appeal filed by the State, appeal preferred by H.E.C.L. has been admitted and the valuation report, Exhibit X, prepared on behalf of H.E.C.L. also has been admitted as additional evidence, under Order 41 Rule 27 of the Civil Procedure Code. Therefore, we do not find any reason to invoke the provision of Order 41 Rule 23 or 23A of the Code of Civil Procedure. 2. The property was free from encumbrances, in view of Section 16 of the Act and as admitted by the appellant State and H.E.C.L in their pleading and in the recital of deed of lease. Therefore, deduction of 1/3rd of the valuation as given by the valuer on the ground that the property is encumbered, is not only factually incorrect, but also the law does not permit such deduction as well. 3. The erstwhile landowners are entitled to get a sum of Rs. 96,26,256/-as compensation instead and place of Rs. 1,02,84,928/-. In addition thereto they are entitled to statutory benefits permissible under the law in view of Section 23 (1A), 23(2) and 28 of the Land Acquisition Act, 1894.
Final Decision: The appeals as well as cross-objection being FA 380 of 2009, COT 3975 of 2006 and FAT 651 of 2018 along with pending applications are thus disposed of, however, without any order as to cost.
JUDGMENT :
(Siddhartha Roy Chowdhury, J.) :
1. By a common judgement we propose to dispose of two appeals and a cross-objection filed by State of West Bengal, Dilip Kumar Jaiswal and Heavy Engineering Corporation Limited respectively impeaching the order of learned Special L.A. Judge, 6th Court of Additional District Judge, Alipore in L.A. Case No. 13/2000 while adjudicating a reference under Section 18 of the L.A. Act, 1894.
2. Briefly stated, the first L.A. Collector, Kolkata acquired the homestead land with a structure at premises no. 77, Park Street, Kolkata measuring about 10 cottahs 5 chittacks 24 square feet with commercial establishments on the ground floor as per notification No. 8-L.A. (II) dated 6th November, 1989 published in part I of the Calcutta Gazette vide no. 7550 L.A. (II) dated 21st July, 1990. The purpose of acquisition of such property was to house the office of M/s Heavy Engineering Corporation Limited (Government of India Enterprise) and an award was made under Section 23 (1a) of the Land Acquisition Act, 1894. The learned Land Acquisition Collector assessed the value of land @ of Rs. 1,41,629/-per cottahs and the structure was valued at Rs. 20,40,826/-, 30% on the market value of the land was awarded as solatium and additional compensation of 12% was awarded for the period commencing from 21st July, 1990 when the declaration was made under Section 6 of the Land Acquisition Act, 1894, to 4th January, 1991 immediately before the date of taking possession. The said award of L.A. Collector was challenged by Dilip Kumar Jaiswal and others, the land owners in a proceeding under Section 18 of the Land Acquisition Act, 1894.
3. Learned L.A. Judge considering the evidence adduced by the parties was pleased to allow the L.A. Case No. 13 of 2000 but in part. The market price of the acquired homestead land was assessed at Rs. 3,04,137/-per cottahs and value of the structure was assessed at Rs. 71,38,377.60/-as on the date of notification. In addition thereto learned L.A. Judge awarded solatium @ 30% on the value of the land and structure less the amount paid by L.A. Collector. Referring claimants are held to be entitled to compensation @ 12% per annum on the entire market value of the land and structure w.e.f. 6th November, 1989 to 11th August, 1998, less the amount paid by Land Acquisition Collector. That apart referring claimants have been awarded further compensation @ 9% for the first year on and from the date of award or possession and, thereafter, @ 15% per annum till the amount is paid in full.
4. Challenging the said judgement State of West Bengal filed the appeal. The referring claimants or the owners of the property Dilip Kumar Jaiswal and others preferred cross-objection and Heavy Engineering Corporation Limited, though was not impleaded as party to the proceeding before the learned L.A. Judge, also challenged the award by preferring a separate appeal.
5. Mr. Tapan Kumar Mukherjee, learned Senior Counsel representing the State of West Bengal, the appellant in F.A. 380 of 2009 with COT 3975 of 2006 submits that requiring body Heavy Engineering Corporation Limited was not before the learned L.A. Judge to represent the case. The requiring body, Heavy Engineering Corporation Limited is considered to be person interested within the meaning of Sub-Section 1 of Section 18 of the Land Acquisition Act, 1894, who is ultimately liable to make payment. Therefore, the impugned judgement cannot be allowed to remain in force only on that score alone and the case may be sent back on remand. It is further adverted by Mr. Mukherjee that the learned Trial Judge while assessing the land value took the average of the market value and also relied upon the evidence of Mr. Arun Chatterjee, who assisted the Court in fixing the market value, however, without visiting the property in question.
6. Mr. Mukherjee further submits that S
