Calcutta High Court (Appellete Side)
Sri Gunadhar Majhi & Ors vs State Of West Bengal & Anr on 1 February, 2012
Author: Soumen Sen
Bench: Pinaki Chandra Ghose, Soumen Sen
1
In the High Court at Calcutta
Civil Appellate Jurisdiction
APPELLATE SIDE
F.A.No.70 of 2007
F.A.T. No. 74 of 2007
SRI GUNADHAR MAJHI & ORS.
Vs.
STATE OF WEST BENGAL & ANR.
BEFORE:
THE HON'BLE JUSTICE PINAKI CHANDRA GHOSE, J.
AND THE HON'BLE JUSTICE SOUMEN SEN, J.
For the Appellant : Mr. Shantimoy Panda, Sr. Adv.,
Mr. Monoranjan Mahato, Adv.,
For the Respondent No.2 : Mr. D.K. Singh, Adv.,
For the State : Mr. Ashok Banerjee, Ld. G.P.
Mr. Pratik Prakash Banerjee, Adv.,
Heard on : 08.06.11, 21.06.11, 04.07.11,
18.08.11, 26.09.11.
Judgment on : 01/02/2012
Soumen Sen, J.: The instant appeal is arising out of the judgment and the order dated 31st July, 2006 passed by the learned District Judge, Purba- Medinipore at Tamluk in L.A. Misc. Case No.108/2004 arising out L.A. Misc. 2 Case No.17/2000 in a reference under Section 18 of the Land Acquisition Act, 1894.
The appellants were not satisfied with the assessment of compensation by the District Collector in respect of the scheduled property, namely, 2.36 decimal of land in total for which a compensation of Rs.9, 29,015 was awarded.
The appellants in the said proceeding, namely, L.A. Misc. Case No.108/2004 challenged the said assessment made by the District Collector on the ground that such assessment of compensation has not been properly made and such assessment suffers from perversity and total non-application of mind since in assessing compensation the said authority had failed to take into consideration the proper market value prevailing at the time of acquisition.
The aforesaid plots of land have been acquired in L.A. Case No.28 of 1991- 2000, 29 of 1999-2000 and 30 of 1999-2000 in the names of Gunadhar Majhi, Bindu Bala Majhi wife of Gunadhar Majhi and Deb Kumar Majhi and Dilip Kumar Majhi son of Gunadhar as all the lands were recorded jointly in the names of the appellants/petitioners on 19th April, 2000, the District Collector of the then Medinipore awarded Rs. 9,29,015/- in the said three reference cases.
The petitioners argued that the lands were acquired for the purpose of "Tamluk - Digha Broad Guage Rail Line" and Padmapukuria Railway Station was 3 constructed on the lands of the appellants after such acquisition was made. The said land is situated very near to the Highway, that is to say, the distance between the land and the highway is less than one kilometer and there are Markets, Schools and Colleges situated nearby the lands of the appellants. The said land is within the Jurisdiction of Contai Municipality (Kanthi) and such lands are prime properties which were acquired for the aforesaid purpose.
The District Collector on 19th April, 2000 awarded the compensation on the following basis:-
"All of Mouza - Padmapukuria, Ward No.18, Contai Municipality. Plot No. Classification Area Rate of payment of Compensation. 251 Bastu (Homestead) 36 Decimal. @ Rs.3257.32P.
249 Dhosa (Agri) 27 } 42 " @ 3121.59 252 Dhosa (Agri) 15 } 250 Pond (Doba) 21 } 29 @ 1357.20P.
231 Pond (Doba) 08 }
247 Jal (Agri) 05
284 Jal (Agri) 12
245}
246} Jal (Agri) 41
234 Jal (Agri) 03} Total 1.29 Acres @ Rs.2714.43P.
236 Jal (Agri) 14 or 129 Decimals.
4
233 Jal (Agri) 33
The total acquired lands of the appellants are 2.36 acres of land."
The appellants were not satisfied with such assessment of compensation. The appellants argued that meager amounts have been awarded for the homestead land along with toilet and no compensation was awarded for Poultry and Fishery and sufferings of home and hearth. In respect of orchard for Akashmani Plant rate of compensation was fixed as Rs.1/- for each for Gandharaj flower tree @ Rs.2/- each, Gandharaj, Karabi, Tagar and Mallikas tree @ Rs.2/- each for Papya tree @ Rs.39/- for fruit bearing mango Trees @ 455/- each for Coronate Tree @ Rs.163/- and the Tamarind middle size tree @ Rs.130/- each.
The appellants/petitioners filed objection against the notice under Section 9 and 12 of Act-1 of 1894 on 3rd April, 2000 and as the matter was not referred to, the applicant filed an application under Section 18 of the Act-1 of 1894 for reference before the then District Judge, Medinipore and L.A. Misc. Case No.17 of 2000 was started under Section 18 of the L.A. Act, 1894.
Originally the appellants claimed Rs.1,70,91,692/- on 16th May, 2000 and subsequently on 7th January, 2001, filed an application for amendment under Order 6 Rule 17 of the Code of Civil Procedure claiming enhanced amounts of Rs.1,86,19,199/-.
5
Although the entire homestead, courtyard, garden and properties attached thereto and ponds as well as agricultural lands were acquired and the appellants became homeless and rendered unemployed inasmuch as the said properties were valuable and potential lands wherein the Railway Station was built, the compensation was too meagre. The Collector and even the appellate authority had failed to take into consideration such factors and the compensation awarded being a sum of Rs.9,29,015/- under the facts and circumstances and having regard to the evidence on record is clearly arbitrary and perverse. It was argued that such assessment was made by not taking into consideration the proper market value prevailing at the time of such acquisition.
The appellants argued that the prevailing value was for the classification Jal @ Rs.23,000/- per decimal, Dhosa @ Rs.50,000/- per decimal and Bastu and Pukur @ Rs.80,000/- per decimal. The appellants also claimed that the compensation of Rs.5,84,650/- for the dwelling house for which only Rs.2,50,000/- have been awarded. The appellants also claimed Rs.6,81,120/- for orchard and for poultry Rs.1,93,610/- and the estimated value of loss of pisciculture at Rs.5,00,000/-, loss of business at Rs.5,00,000/-, loss of employment at Rs.10,00,000/-, loss of fishery at Rs.3,19,423/- and loss of integrity of Rs.7,00,000/- along with interest and solatium according to law. 6
It was also argued that after the bifurcation of District Midnapore the jurisdiction of the case of the appellants transferred to the newly formed District Purba-Medinipur and the L.A. Misc. Case No.17 of 2000 has been numbered as L.A. Misc. Case No.108 of 2004.
In the said proceeding, the appellants exhibited as many as 10 documents and several other documents in support of their claim including the Registered Deeds that were executed in and around the time when the said property was acquired. The appellants also exhibited some unregistered documents for the purpose of assessing the proper market value of the said property.
The appellants argued that no objection was raised on behalf of the said respondents neither at the stage of Section 18 of Act of 1894 against the claim of the appellants nor at the time when the aforesaid documents were exhibited including several sale deeds and, accordingly, it was not open for the said authorities to disregard such documents and arrive at a compensation which is ex facie arbitrary and suffers from total non-application of mind. The attention of the Court was drawn Exhibit No.4 and 4(a) at pages 110-123 of the Paper Book which, inter alia, includes reference to the following documents:
"1) Deed No.6264/2000 dated 27th August, 2001, Purchaser Kamala Kanto Gharai & Ors., Vendor:- Sunil Kumar Gharai and others. Rate @ Rs.45,000/- per decimals.7
2) Deed No. 5323 dated 7th July, 2000, same purchasers and Vendors.
Rate @Rs.4,00,000/- for 10 ½ decimals."
The appellant has also referred to Exhibit 6 being the plan and estimate of the dwelling house. Exhibit 7 and 7/1 being the Statements of Accounts of the Poultry, Fishery of the appellants and the appellants also submitted 16 Registered Deed of Sale in respect of the self-same mouza and concerned area and it was argued by making reference to such documents that such documents were all registered and/or executed between 1999 to 2000 when the acquisition of lands had taken place and such documents should have been taking into consideration for the purpose of estimating and assessing the compensation to be awarded in respect of the lands that were acquired by the State authorities.
However, it has been fairly submitted that such documents have not been exhibited earlier but the State authorities are fully aware of the prevailing market rate of such lands and it was incumbent upon them to assess the compensation by taking into consideration the prevailing market rate at the time of acquisition. The appellants have furnished the details of such unexhibited Sale Deed which are as follows:
"1. Sale Deed dated 15th January, 1999 (Deed No.4260) :
Purchaser Vendor Plot No. Kh.No. Area
8
Paresh Chandra Panchanan 310 10 4 Dec.
Khamari & Anr. Ghorai & Ors.
Valuation Rs.25,000/- per Decimal.
2. Sale Deed dated 30th June, 1999 (Deed No.1428) :
Purchaser Vendor Plot No. Kh.No. Area
Smt. Sagarika Guria Biraj Kumar Adak 772 57/8 2 7/10 Dec.
Valuation Rs.25,000/- per Decimal.
3. Sale Deed dated 12th May, 2000 (Deed No.3849) :
Purchaser Vendor Plot No. Kh.No. Area
Smt. Kamalkali Kanailal 865 241 4 Dec.
Pradhan Pradhan
Valuation Rs.35,000/- per Decimal.
4. Sale Deed dated 10th July, 2000 (Deed No.4919) :
Purchaser Vendor Plot No. Kh.No. Area Satadal Gutia Banabihari Bera 761 42 1/8 Valuation Rs.42,784/- per Decimal.9
5. Sale Deed dated 28th February, 2000 (Deed No.3916) :
Purchaser Vendor Plot No. Kh.No. Area
Ansar Ali Shah Sushanta Pradhan 1028 215 02 Dec.
Valuation Rs.40,000/- per Decimal.
6. Sale Deed dated 25th October, 1999 (Deed No.6575) :
Purchaser Vendor Plot No. Kh.No. Area
Smt. Rina Das Khagendra Gorai & 4 Ors. 314 202 08 2/5 Dec.
Valuation Rs.27,500/- per Decimal.
7. Sale Deed dated 8th November, 2000 (Deed No.485) :
Purchaser Vendor Plot No. Kh.No. Area
Molla Manwara Ratan Kumar 910 86 01 ½ Dec.
Begum Ghorta
Valuation Rs.83,000/- per Decimal.
8. Sale Deed dated 4th April, 2001 (Deed No.2507) :
Purchaser Vendor Plot No. Kh.No. Area
Nemai chand Subal Kumar Bera 1050 124 05 Dec.
10
Mondal & Anr.
Valuation Rs.60,000/- per Decimal.
9. Sale Deed dated 28th January, 2000 (Deed No.1529) :
Purchaser Vendor Plot No. Kh.No. Area
Subhas Sankar Jana & Anr. 111 42 01 Dec.
Chandra Jana
Valuation Rs.60,000/- per Decimal.
10. Sale Deed dated 15th March, 2000 (Deed No.5794) :
Purchaser Vendor Plot No. Kh.No. Area
Uttam Kumar Lala Smt. Namita Lala 487 43 1 1/16 Dec.
Valuation Rs.83,375/- per Decimal.
11. Sale Deed dated 31st December, 1999 (Deed No.1002) :
Purchaser Vendor Plot No. Kh.No. Area
Ashim Sankar Mishra Mrinal Ranjan Maity 110 124 03 Dec.
Valuation Rs.66,666/- per Decimal.
11
12. Sale Deed dated 6th August, 1999 (Deed No.5777) :
Purchaser Vendor Plot No. Kh.No. Area
Madan Mohan Das Smt. Dipali Khanra 1029 7 4 3/4 Dec.
Valuation Rs.44,000/- per Decimal.
13. Sale Deed dated 7th November, 2000 (Deed No.188) :
Purchaser Vendor Plot No. Kh.No. Area
Bivash Nabendu Kr. 156 523 02 Dec.
Chandra Bera Mahapatra
Valuation Rs.33,900/- per Decimal.
14. Sale Deed dated 11th December, 2002 (Deed No.2784) :
Purchaser Vendor Plot No. Kh.No. Area
Kesab kr. Manna Phani Bhusan Basu 163 85 5 3/20 Dec.
Valuation Rs. per Decimal.
15. Sale Deed dated 8th November, 2003 (Deed No.4828) :
Purchaser Vendor Plot No. Kh.No. Area
Sukasam Manna Deb Kumar Das 154 783 07 1/4 Dec.
12
Valuation Rs.4,71,250/- per Decimal.
16. Sale Deed dated 25th October, 1999 (Deed No.6575) :
Purchaser Vendor Plot No. Kh.No. Area Smt. Rina Das Khagendra Ghoria & 4 Ors. 314 202 04 1/5 Dec."
The State did not object to the factum of the existence of such sale deed. The State also did not object to the production of such document at the appellate stage. The State has taken a fair stand that if on production of the said documents it appears that such documents are genuine and the compensation that was awarded found to be inadequate, such compensation amount would be suitably revised. It was further submitted that the matter may be considered afresh by taking into consideration such evidence which has since come to light.
The appellants on the basis of such exhibited and unexhibited sale deeds submitted that it would be evident from such documents that at the time of acquisition, the prevailing market rate would not be less than Rs.40,000/- per decimal and even after taking the depreciation at 10 per cent and other relevant factors, the market value of the lands acquired should have been more than Rs.36,000/- per decimal at the relevant time of acquisition.
It was further argued that the learned Court below has completely misdirected its mind in construing the sale deed being Exhibit 10. It was argued 13 that the learned Judge although referred to documents namely, Exhibit No.10 but the said learned Judge referred to rely on the said document on the ground that the said land was homestead and the land of the appellant was agricultural land though all classifications of land including homestead were acquired.
The learned Counsel appearing on behalf of the appellant in order to show the perversity and lack of proper appreciation of the evidence, drew our attention to Exhibit No.8 which was considered by the learned Single Judge and upon consideration of the said exhibit, the learned Judge did not accept such valuation on the ground that the land acquired was not situated in the Town of Contai and was far away from Contai town and adjacent to cultivable land. The learned Single Judge completely overlooked the fact that the said land was under the Contai Municipality in Ward No.18 and Padmapukuria Railway Station had been constructed over the land of the appellant and the distance of Contai town from the land of the appellant is less than 1 kilometre.
Thus, it was submitted that it would be apparent on the face of record that the learned Judge misdirected himself in not interfering with the award of the Collector on the basis of the admissible documents of registered sale deed at the relevant time of acquisition and in not awarding at least 36,000/- per decimal as the market value of the land on average though such lands are capable of fetching a much higher price.14
It was further argued that the learned Court below completely misdirected himself in not considering the loss of profession earning by the appellants consequent upon acquisition acquiring of their land in respect of Pisciculture and Poultry and no award was passed to those items. The valuation of the homestead was also inadequate and meagre and no compensation was given for loss of home, hearth and unemployment. The valuation of the Orchard also shocks the conscience, in brief, are the various complaints made by the petitioner against the award.
It was submitted that the learned District Purba-Medinipur on 31st June, 2006 passed the Judgment and Order without interfering with the award of the District Collector and dismissed the reference case holding inter alia at page 58 middle portion "none of the awardees have objected to but the petitioners being dissatisfied with the award accepted the compensatory amounts with objection".
Such recording according to the petitioner, in the middle portion of Page 58 of the paper book was absolutely incorrect. Since it would be evident that the adjacent plot holder namely Somen Majhi and others filed reference case under Section 18 which was registered as L.A. Misc. Case No.16 of 2000 and it has been observed that in the Mouza Padmapukuria the concerned mouza under P.S. Contai the market value of the land was never less than 15 to 20 thousand per decimal and the Additional District Judge, Paschim Medinipur enhanced the rate of land 15,000/- to 20,000/- per Decimal.
15
It is submitted that the appellants submitted several registered deeds exhibited and un-exhibited in support of their claims and the State had neither filed any written objection on behalf of the State to contradict the claim of the appellants nor exhibited any sale deed to negate the claim of the appellants and even the learned Government Pleader in course of his argument admitted that the lands of the appellants are within the jurisdiction of Contai Municipality and Padmapukuria Railway Station has been established on the land of the appellants.
The learned Counsel appearing on behalf of the appellants relied upon the following decisions with regard to the method to be adopted in such compensation cases:-
i) AIR 2011 SC 2458;
ii) AIR 2010 SC 2322;
iii) AIR 2008 SC 2007;
iv) AIR 1975 (1) SCC 238;
v) AIR 2004 SC 1031;
vi) AIR 2004 SC 4830;
vii) 2011 (2) CHN (SC) 49;
The element of guesswork in the matter of determination for compensation has been judicially recogized in Viluben Jhalejar Contractor Vs. State of 16 Gujarat reported in 2005 (4) SCC 789. The same principle was applied subsequently in Avinash Dhavaji Naik Vs. State of Maharashtra reported in 2009 (11) SCC 171. In Avinash Dhavaji Naik's case in Paragraph 18, the Hon'ble Supreme Court relied upon Villuben Jhalejar Contractor v. State of Gujarat which is reproduced hereinbelow:
"18.(20). The amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-à-vis the land under acquisition by placing the two in juxtaposition. The positive and negative factors are as under:
Positive factors Negative factors
(i) smallness of size (i) largeness of area
(ii) Proximity to a road (ii) situation in the interior at a distance
from the road
(iii) frontage on a road (iii) narrow strip of land with very small
frontage compared to depth
(iv) nearness to developed area (iv) lower level requiring the depressed
portion to be filled up
(v) regular shape (v) remoteness from developed locality
17
(vi) level vis-à-vis land under
acquisition (vi)some special disadvantageous
factors which would deter a purchaser
(vii) Special value for an owner of
an adjoining property to whom it may
have some very special advantage
21. Whereas a small plot may be within the reach of many, a large block of land will have to be developed preparing a layout plan, carving out roads, leaving open spaces, plotting out smaller plots, waiting for purchasers and the hazards of an entrepreneur. Such development charges may range between 20% and 50% of the total price."
After considering the said judgment it was held that in such a case some guesswork is inevitable. Subsequently, the Hon'ble Supreme Court has coined the word "Guesstimate" in Trishala Jain's case which is "an estimate based on a mixture of guesswork and calculations and it is a process in itself."
The learned Counsel on the basis of the ratio laid down in AIR 2011 SC 2458 (Trishala Jain v. State of Uttaranchal) submitted that in matters relating to determination of market value, some amount of guesswork is always done and the principles applied by the Hon'ble Supreme Court in such case was 18 "Guesstimate'. Our attention was drawn to Paragraph 27 and 33 of the said report which are as follows:
"27. 'Guess' as understood in its common parlance is an estimate without any specific information while 'calculations' are always made with reference to specific data. 'Guesstimate' is an estimate based on a mixture of guesswork and calculations and it is a process in itself. At the same time 'guess' cannot be treated synonymous to 'conjecture'. 'Guees' by itself may be a statement or result based on unknown factors while 'conjecture' is made with a very slight amount of knowledge, which is just sufficient to incline the scale of probability. 'Guesstimate' is with higher certainty than mere 'guess' or a 'conjecture' per se."
"33. These precedents clearly demonstrate that the Court may apply some guesswork before it could arrive at a final determination, which is in consonance with the statutory law as well as the principles stated in the judicial pronouncements. As already noticed, the guesswork has to be used for determination of compensation with greater element of caution and the principle of guesstimation will have no application the case of 'no evidence'. This principle is only intended to bridge the gap between the calculated compensation and the actual compensation that the claimants may be entitled to receive as per the facts of a given case to meet the ends of justice. 19 It will be appropriate for us to state certain principles controlling the application of 'guesstimate:
(a) Wherever the evidence produced by the parties is not sufficient to determine the compensation with exactitude, this principle can be resorted to.
(b) Discretion of the court in applying guesswork to the facts of a given case is not unfettered but has to be reasonable and should have a connection to the data on record produced by the parties by way of evidence. Further, this entire exercise has to be within the limitations specified under Sections 23 and 24 of the Act and cannot be made in detriment thereto."
In so far as the factors for determining compensation, the said collector should also take into consideration the law laid down by the Hon'ble Supreme Court in the following cases 2009 (11) SCC 171 (Avinash Dhavaji Naik Vs. State of Maharashtra) and 2009 (14) SCC 375 (Union of India Vs. Harpat Singh & Ors.).
The learned Counsel for the appellant has also relied upon a judgment reported in 2011 (2) CHN 49 (SC) (Executive Engineer, Karnataka Housing Board Vs. Land Acquisition Officer, Gadag) for the proposition that though the lands were agricultural lands (in that case) they could be classified as lands 20 having urban development potential and on the basis it was argued that when it is not in dispute that the said land is situated less than 1 kilometre from the Contai town, though the said lands were agricultural but they could be classified as lands having urban development potential. The learned Counsel appears to have been inspired by the observation made by the Apex Court in paragraph 10 of the said report which is reproduced hereinbelow:
"10. Evidence shows that the acquired lands were situated within the municipal limits, though on the outskirts of Gadag-Betegeri within a distance of one kilometre from Gadag Railway Station and the bus stand; and that there were several residential colonies and colleges in the surrounding areas. Therefore though the lands were agricultural, they could be classified as lands having urban development potential. Having regard to the partial access to infrastructural facilities, we are of the view that a deduction of 40% towards cost of development would meet the ends of justice. On the facts and circumstances, the cut of 53% applied by the Reference Court is too high and the cut of 33% applied by the High Court is low. On applying a cut of 40%, the rate per acre for the acquired land as on 6th February, 1992, would be Rs.2,95,476/- (rounded off to Rs.2,95,500)."
The learned Counsel submitted that instead of remanding the said matter for fresh consideration on the basis of the principles laid down by the Apex Court, we may determine the said market value as Rs.36,000/- per decimal by 21 taking into consideration the fact and the land in question ought to have been assessed at more than Rs.40,000/- per decimal as market value at the relevant time of acquisition and after depreciation of 10 per cent for the development of land, it would come to Rs.36,000/- per decimal on which the appellants would be entitled to 30 per cent of solatium of the compensation and 12 per cent interest as admissible under the law.
It was further submitted on account of loss of home and hearth, trees, poultry and fishery, etc., the appellants leave the matter to this Hon'ble Court for sympathetic consideration. However, we are not inclined to accept such submission on behalf of the appellant. Although we agreed with the submission made by the learned Counsel that the matter requires relook but we feel that the matter should be decided by the Collector by taking into consideration the observations made by us and the law laid down by the Hon'ble Supreme Court in the several decisions referred to above including the latest decisions in Trishala Jain(supra). The said authority must also take into consideration the submission made on behalf of the State with regard to the exhibited and unexhibited sale deeds. Since the matter relates to 2000, the Collector should make all endeavour to complete the said proceeding within a period of six months from the date of communication of this judgment.
Accordingly, the judgment and order passed by the District Judge on 31st July, 2006 is set aside. The appeal succeeds.
22
Urgent xerox certified copy of this judgment, if applied for, be given to the parties expeditiously on compliance of all necessary formalities.
(Soumen Sen, J.) I agree:
(Pinaki Chandra Ghose,J.)