Tripura High Court
Smt Sarojini Chakma vs The Land Acquisition Collector on 29 May, 2017
Author: S.Talapatra
Bench: S.Talapatra
1
THE HIGH COURT OF TRIPURA
AGARTALA
LA APP 29 OF 2011
[
Smt Sarojini Chakma,
W/o Shri Meghnath Chakma,
resident of Mainama,
P.O. & P.S. Manughat,
Dhalai, Tripura.
.... Appellant.
- Vs -
1. The Land Acquisition Collector,Dhalai,
P.O. & P.S. Ambassa, District-Dhalai Tripura.
2. The Officer Commanding,
112 RCC, GREF, C/O 99 APO,
Pin-930112.
...Respondents.
BEFORE THE HON'BLE MR. JUSTICE S.TALAPATRA For the appellant : Mr. G.S. Bhattacharjee, Advocate For the respondent No.1 : Mr. B. Dutta, Advocate For the respondent No.2 : Mr. H. Deb, ASG Date of hearing and delivery of Judgment & Order. : 29.05.2017 Whether fit for reporting : No JUDGMENT & ORDER(ORAL) Heard Mr. G.S. Bhattacharjee, learned counsel appearing for the appellant as well as Mr. B. Dutta, learned counsel appearing for the respondents.
2. This is an appeal from the judgment and award dated 23.12.2010 delivered in Misc.(LA) 27/2008 by the Land Acquisition Judge, North Tripura, Kailashahar as he then was. LA App 29 of 2011 Page 1 of 7 2
3. The fact, which is not in dispute, is that by the Notification No.F.9(2)-Rev/ACQ/V/03 dated 11.02.2004, a piece of land measuring .16 acres [8 Gandas], classified as 'Bastu' was acquired from the appellant. The Land Acquisition Collector (the LA Collector in short), North Tripura, Kailashahar as he then was having enquired into relevant factors determined the compensation under Section 23 of the Land Acquisition Act. It is to be noted that after having the notice under Section 9 of the L.A. Act, the appellant claimed compensation on the basis of the land rate at Rs.8,00,000/- per kani. But the L.A. Collector awarded the compensation to the extent of Rs.61,978/- and communicated the same by the notice dated 14.05.2008.
4. Being dissatisfied, the appellant urged for a reference under Section 18 of the L.A. Act. The appellant claimed that the land value has not been assessed fairly. The compensation is not just. No value has been added in respect of the [RCC] building that was standing on the acquired land.
5. Mr. Bhattacharjee, learned counsel has referred to the reference-petition made under Section 18(1) of the L.A. Act where the appellant has demonstrated how he was entitled to much higher compensation. According to him, for the said acquisition, he is entitled to Rs.27,94,000/-. The L.A. Collector had referred the matter to the L.A. Judge, North Tripura, Kailashahar.
6. The Claimant filed the written claim in the Court of the L.A.Judge and asked for a local inquiry by a Survey Commissioner LA App 29 of 2011 Page 2 of 7 3 to determine the value of the RCC building which was done by a Chartered Engineer, namely, Jayanta Bikash Dhar (P.W.2) valued at Rs.14,59,000/-. The L.A. Judge caused a local inquiry by an Advocate Commissioner [Commissioner, in short] but not accepted the report of the said commissioner dated 21.05.2010. The commissioner while making a detailed survey of the building on the acquired land has observed as under:-
"In my Map "A" indicates a pucca building of claimants. The roof of building has been constructed by Re-inforced cement concrete (in short R.C.C.) Slab "G"
indicates upstairs which extended up to second floor from Ground Floor. The length and breadth of upstairs are 6.43 meter X 2.58 meter. The roof of the upstairs is also constructed by R.C.C. Slab and the upstairs steps and pillars are also constructed by R.C.C. "E" is the entrance door of main building "H" is the hanging R.C.C. slab and its length and breadth are 10.90 meter X 1.50 meter. This hanging slab extended from west to East from roof of the main building. The total area of R.C.C. slab is 156.97 square meter. "F" indicates the front windows of main building. There is one exit corridor on the west of main building and its length and breadth are 1.85 meter X 1.73 meter. There is one extension of building on the south of main building and its length and breadth are 6.15 meter X 2.06 meter.
In the map "B" indicates one pucca building with R.C.C. roof latrine with three rooms. Its length and breadth are 3.65 meter X 1.52 meter.
In the map "C" indicates car shed with wooden pillars and roof was constructed by G.C.I. sheet."
7. Mr. Bhattacharjee, learned counsel has referred to the Chartered Engineer's assessment of the said building (Exbt.1 in series). It appears from the said assessment report that the Chartered Engineer namely Jayanta Bikash Dhar had initially assessed the estimated cost of construction of the building and thereafter deducted the depreciation cost, as according to the appellant, the construction of the building was started in the year LA App 29 of 2011 Page 3 of 7 4 1993 and completed in the year 1999. Thus, the present value according to the said Chartered Engineer comes to Rs.14,58,773/- [Rs.16,53,000.00 - Rs.1,94,227.50].
8. Mr. Bhattacharjee, learned counsel has strenuously argued that by the judgment dated 23.12.2010 delivered in Civil Misc.(LA) 27/2008 [Smt. Sorojini Chakma Vrs. the L.A. Collector & Anr.] the L.A. Judge has failed to take into consideration the market value of the said building. Even the land value as determined does not reflect the contemporaneous rate at the time of acquisition. It has been observed that the appellant was entitled to get Rs.48,000/- as the enhanced amount for the land and Rs.3,39,014/- towards costs of the huts, the building and removal and Rs. 13,370/- towards damage of the cost of the trees. It has been further observed in the said judgment dated 23.12.2010 that the appellant will be entitled to get 30% solatium and 12% interest. The appellant was again aggrieved by the said assessment in respect of the value of the building at Rs. 2,00,000/-. According to Mr. Bhattacharjee, it reflects clear non-consideration of the basic material placed by the referring claimant in the proceeding before the L.A. Judge.
9. Mr. Bhattacharjee, learned counsel has submitted that the compensation as assessed by the Chartered Engineer is based on the Public Works Department's manual of 2008. LA App 29 of 2011 Page 4 of 7 5
10. However, Mr. B. Dutta, learned counsel appearing for the respondents has not contested the said statement, but he has quite robustly submitted that the manual of 1998 should have been applied for getting the value of the construction. Further, Mr. Dutta has submitted that this Court may notice that the land with the building was acquired in the year 2004.
11. Mr. Dutta, learned counsel has submitted that from the evidence it cannot be determined whether the building is situated entirely on the acquired land or not. But he has not definitely made any submission to enable this Court to reach to an inference that the building is situated on the acquired land or on a part of it or the building is situated on the land beyond the acquired land.
12. Mr. H. Deb, learned ASG appearing for the requiring department to the officer Commanding 112 RCC(GREF) has submitted that the compensation as assessed by the L.A. Judge is a reasonable one and does not call for any interference from this Court.
13. It is to be noted that neither Mr. Bhattacharjee learned counsel for the appellant nor Mr. Dutta, learned counsel for the respondents has challenged the report of the commissioner. In the commissioner's report a schedule of the acquired land has been provided as under:
'Mouja- Mainama, Khatian No.699, 714 C.S. Plot No.50/3509, Land measuring-0.12 Acres.' LA App 29 of 2011 Page 5 of 7 6
14. There is no dispute that the land comprised in CS Plot No.50/3509 is the land on which the building is situated. The respondents have categorically stated that the total land that has been acquired from the appellant is .16 acres. When the commissioner's report is not in dispute, this Court does not have any hesitation to hold that the building under reference is situated on C.S. Plot No.50/3509, measuring 0.12 acre of land. From the description as provided by the Advocate Commissioner it appears that the entire building was situated on the said plot. The Chartered Engineer has calculated the cost of constructing such building on 21.08.2009. According to the said report, cost of the construction would be on that day is Rs.14,58,773/- on deduction of the depreciation. Since the construction had started in the year 1993 and it was completed in the year 1999 and the land was acquired in the year 2004, the depreciation shall be calculated for clear 5 years. The rate of depreciation should be 5% per year. Thus, for the 5 years the depreciation must be more than 25% from the total estimated cost. Out of Rs.16,53,000/-, 25% shall be deducted. Thus Rs.4,13,250/- shall be deducted.
15. The value of the building, therefore, would be Rs.12,39,750/-. From the said amount, Rs. 1,00,000/- further be adjusted as the Land Acquisition Collector had, as noticed, awarded for the said construction. Thus, the total value of the construction, what has to be payable is Rs.11,39,750/-. Therefore, the appellant would be entitled to have the cost of Rs.12,39,750/-. From that amount, as it is stated, Rs.1,00,000/- has been paid in terms of LA App 29 of 2011 Page 6 of 7 7 the award of the L.A. Collector. Accordingly, the said amount shall be adjusted.
16. As Mr. Bhattacharjee, learned counsel for the appellant did not insist the other grounds of objection by saying that the appellant would confine the appeal towards the damage of the [RCC] building. Therefore, the judgment and award dated 23.12.2010 stands affirmed, except the assessment of damage of the [RCC] building, as determined hereunder, and the rate of interest.
It is directed that the components of compensation under section 23(2) and 23(1A) of the L.A. Act shall carry interest in terms of section 34 of the L.A. Act. Accordingly, the total compensation be calculated and that shall be paid to the appellant within a period of 6(six) months from the day when a copy of this judgment be submitted by the appellant to the L.A.Collector.
17. Having observed thus, this appeal is allowed to the extent as indicated above. Prepare the award/decree.
18. Send down the records thereafter.
JUDGE LA App 29 of 2011 Page 7 of 7