Calcutta High Court (Appellete Side)
C.E.S.C Limited vs Dr. Nilkamal Bezboruah Tarazan And ... on 27 April, 2015
Author: Nishita Mhatre
Bench: Nishita Mhatre
Form no. J(2)
In the High Court at Calcutta
Civil Appellate Jurisdiction
Present:
The Hon'ble Justice Nishita Mhatre
And
The Hon'ble Justice Asha Arora
F.A. No. 2 of 2005
With
F.A. No. 3 of 2005
C.E.S.C Limited
...Appellant
Versus
Dr. Nilkamal Bezboruah Tarazan and others
...Respondents
For the appellant: Mr. Anindya Kumar Mitra,
Mr. Anirban Ray,
Mr. Jeevan Ballav Panda,
Mr. Rishav Dutt.
For the respondents: Mr. Ashok Kumar Banerjee,
Mr. Sudhakar Prasad.
Heard on: 8th April, 2015 and 9th April, 2015.
Judgment on: 27th April, 2015.
Asha Arora, J.:
1. Both the appeals being F.A. No. 2 of 2005 and F.A. No. 3 of 2005 arise out of a common judgement dated 30th July, 2004 and decree rendered by the Special Land Acquisition Judge Alipore, District- 24 Parganas (South) in L.R.A Case No. 96 of 1997 and 97 of 1997. By the impugned judgement and decree the aforesaid two land acquisition reference cases have been allowed and the land valuation has been enhanced to the extent of Rs.8,59,070/- per cottah. The referring claimant has also been granted other statutory benefits under the Land Acquisition Act, 1894 (hereinafter referred to as the Act).
2. Being aggrieved, the appellant/Calcutta Electric Supply Corporation Limited, (for brevity referred to as the C.E.S.C Limited) the Opposite Party No. 2 in the lower Court brought the matter in appeal mainly on the following counts:
1. The Land Acquisition Judge erred in not taking into consideration the valuation of Premises No. 77 Park Street, Kolkata as assessed by the Land Acquisition Collector.
2. No reason was assigned for not taking into consideration the valuation of the aforesaid premises.
3. The market value of Premises No. 2 Park Lane (acquired land) ought not to have been assessed solely on the basis of the valuation of Premises No. 91 A, Park Street, which has a large area suitable for development by construction of multi storied buildings while the premises in question that is, 2 Park Lane is not.
4. The valuation of the acquired land assessed by the Land Acquisition Judge at the rate of Rs.8,59,070/- is without any basis and as such arbitrary.
5. The evidence on record including that of the Government Valuer was not taking into consideration and the correct principle for assessment of valuation was not followed.
6. In view of partition of Premises No. 2 Park Lane, the Respondent No. 1/claimant Dr. Nilkamal Bezboruah became the owner of only 8 cottahs 10 chattaks 38 Sq ft of land while his divorced wife Sushila Bezboruah, so long as she was living owned the remaining portion comprising of 7 cottahs 3 chattaks 19 Sq ft of land. The claimant is, therefore, not entitled to compensation in respect of the remaining portion of the premises in question without proving that he is the executor of the estate of deceased Sushila Bezboruah.
3. The lower Court record reveals that L.R.A Case Nos. 96 of 1997 and 97 of 1997 were registered in the Court of Special Land Acquisition Judge Alipore on the basis of two separate applications filed by the claimant namely, Nilkamal Bezboruah under Section 18 of the Land Acquisition Act, 1894 disputing the quantum of compensation determined by the Land Acquisition Collector in respect of 8 cottahs 10 chattaks 38 Sq ft of land along with standing structure and 7 cottahs 3 chattaks 19 Sq ft of land with structure at Premises No. 2 Park Lane, within police station Park Street, Kolkata. It is the case of the claimant that the aforesaid premises was requisitioned by the Government of West Bengal under Sub-section (1) of Section 3 of West Bengal Requisition and Acquisition Act, 1948 for the purpose of establishment of a power distribution system by C.E.S.C and accordingly possession of the said premises was taken on 17th October, 1981. According to the claimant, he was the owner of 8 cottahs 10 chattaks and 38 Sq ft of land while the remaining portion of the aforesaid premises belonged to Sushila Bezboruah since deceased. As the executor to the estate of Sushila Bezboruah, claimant filed a separate application under Section 18 of the Land Acquisition Act in respect of the aforesaid share of his wife in the premises in question. The claimant contended that the amount of compensation has not been properly determined by the Land Acquisition Collector. As per the market value of the property the valuation of the acquired land ought to have been assessed at the rate of Rs.22,00,000/- per cottah and the valuation of the structure ought to have been assessed at the rate of Rs.1,00,000/- per Sq ft. The assessment of valuation of the land in question at the rate of Rs.1,10,380/- per cottah and the valuation of the structure at the rate of Rs.11,985/- per Sq ft has been made by the Land Acquisition Collector without any basis. The prevailing market value of the land was not taken into consideration. The claimant therefore prayed for enhancement of the amount of compensation in terms of paragraph 20 of the application under Section 18 of the Act.
4. The Opposite Party Nos. 1 and 2 namely, State of West Bengal and C.E.S.C contested separately in the lower Court the claim of the petitioner/claimant.
5. To substantiate his case claimant examined as many as 11 witnesses and produced some documents which were marked Exhibits 1 to 7. On behalf of the opposite parties two witnesses were examined namely, O.P.W. 1 Monojit Dey a professional Valuer and O.P.W. 2 Sudhir Ranjan Das a Surveyor and Valuer attached to the L.A Collector's office. On the basis of the evidence adduced by the parties the Reference Court arrived at the conclusion that the claimant is entitled to get the amount of valuation enhanced to Rs.8,59,070/- per cottah together with other statutory benefits under the Act. Holding thus, the two L.R.A cases were allowed in terms of the impugned judgment and decree which have been challenged by the appellant/C.E.S.C.
6. The question that arises in these two appeals is whether the L.A Collector's award in respect of acquisition of Premises No. 77 Park Street on 5th February, 1990 should be taken into account in determining the valuation of the acquired land or whether the certified copy of sale deed dated 7th December, 1994 (Exhibit 7) in respect of Premises No. 91 A, Park Street, relied upon by the Land Acquisition Judge should form the basis of such determination. The next question is whether the determination of market value on the amount of compensation awarded by the Reference Court requires interference.
7. Mr. Mitra, learned Counsel for the appellant C.E.S.C argued that the L.A Judge erred in assessing the market value of the acquired land solely on the basis of the valuation of Premises No. 91 A Park Street, which was not a comparable unit for valuation of Premises No. 2 Park Lane. It has further been contended on behalf of the appellant that no reasons have been assigned by the Special Judge for not taking into consideration the valuation of Premises No. 77 Park Street, on the basis of which the L.A Collector assessed the value of the land in question.
8. Leading us through the Rate Report of the L.A Collector in respect of Premises No. 2 Park Lane, learned Counsel for the appellant submitted that the land value of several premises mentioned therein were taken into consideration for assessing the valuation of the acquired land before taking Premises No. 77 Park Street as the comparable unit. Referring to the evidence of O.P.W No. 1 Mr. Monojit Dey, the valuer of immovable property along with his report (Exhibit A), learned Counsel for the appellant sought to impress upon us that the appropriate comparable unit for assessing the value of the premises in question is Premises No. 77 Park Street which stands by the side of Park Lane (as per evidence of O.P.W 1) and not Premises No. 91 A Park Street which is far away from the premises in question.
9. Placing reliance on the case of Periyar and Pareekanni Rubbers Limited versus State of Kerala, reported in AIR 1990 Supreme Court 2192 at page 2197 learned Counsel for the appellant rightly argued that in a reference under Section 18 of the Act, the burden of proving that the amount of compensation awarded by the Collector is inadequate lies on the claimant and he must show affirmatively that the Collector had proceeded upon a wrong basis. Referring to the case of Executive Engineer (Electrical), Karnataka Power Transmission Corporation Limited versus Assistant Commissioner and Land Acquisition Officer, Gadag and others with Malimath D. Kallolegi and others versus Assistant Commissioner and Land Acquisition Officer, Gadag and others reported in (2010) 15 SCC 60, learned Counsel for the appellant pressed into service the relevant paragraph 12 of the judgement wherein it has been held as follows: "As far as Exts. P-16 and 16-A (the two sale deeds) dated 19.09.1991 and 21.10.1991 are concerned, it is no doubt true that they cannot be rejected merely because they are three years old. If other satisfactory evidence was not available and if they were in respect of similar land situated nearby, they could have been considered. But when a sale transaction relating to a nearby land, of the year 1994 itself, proximate in time to the date of preliminary notification, is available, there is no need or justification to refer to or rely upon sales which took place three years ago and that too in regard to lands which are far away from the acquired land."
10. On behalf of the appellant reliance has also been placed on the case law reported in (1996) 3 SCC 124 Paragraph 7 ( U.P. Jal Nigam, Lucknow through its Chairman and another versus Kalra Properties (P) Limited, Lucknow and others. In the relevant Paragraph No. 7 of the judgement it has been observed that the subsequent development of the acquired land is irrelevant for determination of compensation which should be determined on the basis of the market value and price of such land prevailing on the date of the publication of the notification under Section 4 (1) of the Act. Learned Counsel for the appellant referred to another decision of the Supreme Court in the case of Painder Singh and others versus Union of India and others reported in (1995) 5 SCC 310 in support of his submission that the claimant needs to establish the market value of the acquired land by adducing evidence to prove that the land acquired and the land covered by sale transaction bear similar or same potentialities or advantageous features.
11. Another branch of argument on behalf of the appellant is that it is incumbent on the claimant/respondent no. 1 to prove that he is the executor to the estate of deceased Sushila Bezboruah who owned the remaining portion of the premises comprising an area of 7 cottahs 3 chattaks 19 Sq ft. Inviting our attention to the case law reported in AIR 1982 CAL 509 (Dr. Nilkamal Bezboruah and another versus State of West Bengal and others), learned Counsel for the appellant referred to paragraph 2 of the judgement wherein it has been mentioned that the appellant No. 2, namely, Sushila Bezboruah the first wife of appellant No. 1, namely, Dr. Nilkamal Bezboruah is alleged to have been divorced in 1954 by a decree of divorce of the High Court at Madras and in the partition suit being Title Suit No. 1940 of 1979 the premises in question that is, Premises No. 2 Park Lane was partitioned by metes and bounds between them. In view of such partition the claimant/respondent no. 1 is the owner of only 8 cottahs 10 chattaks 38 Sq.ft of the premises in question.
12. Mr. Banerjee, learned Counsel for the respondent No. 1/claimant countered by producing a copy of the probate of the last Will of deceased Sushila Bezboruah. It appears therefrom that in P.L.A No. 243 of 1996 in the High Court at Calcutta probate of the last Will of Sushila Bezboruah was granted on 3rd October, 1996 in favour of the executor Dr. Nilkamal Bezboruah. Therefore, the argument in this regard on behalf of the appellant is not sustainable.
13. It is well settled that the claimant who carried the matter in reference before the Special Land Acquisition Judge must show that the valuation made by the Collector is insufficient. The onus of proving the value of the acquired land lies on the claimant and it is necessary for him to adduce sufficient evidence regarding sale of land in the neighbourhood during the relevant period. But this burden may vary according to the nature of the enquiry made by the Collector. Failure of the Collector, while making a reference under Section 18 of the Act to state the grounds on which the amount of compensation was determined as required by Section 19 cl(d) of the Act makes it incumbent on him to justify the award before the L.A Judge.
14. In support of his claim for enhancement of compensation the claimant examined 11 witnesses including himself. Claimant also relied on a series of documents, which have been produced and tendered in evidence being marked Exhibits 1 to
7. Exhibit 1 is the report of valuation of the appropriate authority of Income Tax and Exhibit 1A is a letter wherein the appropriate authority of Income Tax in according permission regarding sale of land and structure at 22 Camac Street showed the valuation of such property. The L.A Judge rightly excluded these two documents from consideration on the ground that they do not establish in any manner that the appropriate authority in making assessment of the valuation took into consideration the price of any property sold and purchased by and between the willing seller and willing purchaser. As regards Exhibit 2 which is a letter issued by the Registrar of Assurances showing valuation of the property in question for giving stamp duty in case of its sale. The Reference Court discarded the said valuation for the reason that such valuation is projected for the purpose of collection of revenue and cannot be of help for assessment of valuation of the acquired land. Exhibit 7 is the certified copy of the sale deed dated 7th December, 1994 in respect of sale of Premises No. 91 A, Park Street, comprising of 2 bigha 10 cottahs 1 chattak and 1 Sq ft of land - 3350 Sq ft which was sold at rupees eight crore. The L.A Judge relied on the certified copy of the sale deed on the ground that the property covered by the said deed that is, Premises No. 91 A, Park Street is almost by the side of the acquired land at 2 Park Lane. Besides, the schedule of the certified copy of the sale deed (Exhibit 7) shows that 91 A Park Street is on the southern vicinity of Park Lane. Further, the certified copy of the sale deed (Exhibit 7) relating to Premises No. 91 A Park Street was accepted by the L.A Judge for the reason that in the absence of any other suitable or reasonable comparable unit, deed of sale brought into existence in relation to any property by and between the buyers and the sellers may be considered as an accurate comparable unit which can form a basis for assessing the valuation of any particular property. The Reference Court also took note of the fact that the notification under Section 4(1) of the Act was made on 6th April, 1994 and the property at 91 A Park Street was sold on 7th December, 1994. Evidently the said sale was proximate in time to the date of notification under Section 4(1) of the Act. Being convinced regarding the bona fide nature of the sale transaction it was accepted as a comparable unit for the purpose of determining the value of the acquired land. It is settled law that the price prevailing on the date of publication of the notification under Section 4(1) of the Act is the price to which the owner or the person who has an interest in the land is entitled. The certified copy of the sale deed (Exhibit
7) shows that the property at Premises No. 91 A Park Street which is in the vicinity of the acquired land at 2 Park Lane was sold eight months after the date of notification under Section 4(1) of the Act at a consideration of rupees eight crore that is, at the rate of Rs.10,74,626/- per cottah. For having the exact and accurate price of the acquired land, the Reference Court deducted 5% (five) per cent from the total amount of Rs.10,74,626/- for the reason that the property at 91 A Park Street was sold at such price after eight months so it must be held that there was rise of 5% (five) per cent in the value of property than that of the value existing on the date of notification. It is evident that the L.A Judge assigned valid and convincing reasons for accepting the sale of Premises No. 91 A as a comparable unit for the purpose of determining the value of the acquired land that is, Premises No. 2 Park Lane. Further, the Reference Court also considered the fact that the property at 91 A Park Street is more important and valuable than the acquired property at 2 Park Lane in terms of location and viability with regard to business. Keeping in mind the said aspect 10% (ten) per cent was deducted from the sale price of the property at 91 A Park Street. This apart, as the acquired land comprised of smaller area compared to the property covered by the sale deed dated 7th December, 1994 (Exhibit 7) having a larger area, a further 10% (ten) per cent was deducted from the sale price of property at 91 A Park Street. After making the aforesaid deductions the Reference Court arrived at Rs.8,59,070/- per cottah as the enhanced amount of compensation.
15. It is the contention of the appellant that the L.A Judge did not assign any reason for not accepting and taking into consideration Premises No. 77 Park Street as a comparable unit for assessment of valuation of the acquired land that is, Premises No. 2 Park Lane. This argument is devoid of merit as is evident to us from the discussion at page 9 to 12 of the judgment of the Reference Court wherein it has been mentioned that the comparable unit accepted by the L.A Collector is situated in Central Calcutta and has commercial importance whereas the property in question namely, 2 Park Lane is away from such premises, namely, Premises No. 77 Park Street. It has also been discussed in the impugned judgement that the sketch map (Exhibit A/1) which is part of the valuation Report in respect of Premises No. 77 Park Street shows that the comparable unit accepted by the L.A Collector is to the south eastern corner of the acquired property, namely, Premises No. 2 Park Lane. Evidently the comparable unit accepted by the L.A Collector was not found to be in the vicinity of the acquired land whereas from the schedule of the certified copy of the sale deed (Exhibit 7) it appeared that the property at 91 A Park Street is on the southern vicinity of the acquired land. Therefore, it has been concluded by the L.A Judge that the property at 91 A Park Street is almost by the side of the acquired land.
16. The Rate Report of the L.A Collector in respect of the acquired land shows that in assessing the value thereof no sale datas of the locality relating to the relevant period were taken into consideration on the ground that no such datas were available. Therefore, the value of the acquired land was assessed solely on the basis of an award made from the office of the L.A Collector in respect of Premises No. 77 Park Street. The Rate Report (Exhibit D) mentions the material date of valuation of the aforesaid property at 77 Park Street as 5th February, 1990. We cannot lose sight of the fact that the L.A Judge, in assessing the valuation of the acquired land banked upon the sale deed dated 7th December, 1994 relating to the sale of property at 91 A Park Street obviously proximate in time to the date of valuation of the acquired land that is, 6th April, 1994 which is the date of publication of the notification under Section 4 (1) of the Act. At this juncture it is significant to refer to Section 23 (1) of the Act which reads thus: "In determining the amount of compensation to be awarded for the acquired land under this Act, the Court shall take into consideration the market value of the land on the date of publication of the notification under Section 4 of Sub- Section (1) of the Act." Therefore, on this count the L.A Collector was not justified in accepting as the comparable unit the property at Premises No. 77 Park Street the valuation of which was assessed four years prior to the valuation of the property under consideration. Apart from that, there is no evidence on record to prove that the property at 77 Park Street is situated nearer to the acquired property than the property at 91 A Park Street. O.P.W. No. 1 Monojit Dey is the valuer who was engaged by the C.E.S.C for assessing the valuation of the acquired property. This witness stated in his evidence that he inspected the said property in the month of April, 2002. He (O.P.W 1) adopted the property at 77 Park Street as the comparable unit for the purpose of ascertaining the valuation of the acquired land. It is clear that the valuer (O.P.W 1) relied on the valuation of the L.A Collector without making any attempt to obtain independent sales reference for determining the valuation of the acquired land. O.P.W 2 Sudhir Ranjan Das has been examined on behalf of the Opposite Party No. 1 State of West Bengal. This witness is the surveyor and valuer attached to the office of L.A Collector. O.P.W. No. 2 also stated that in assessing the valuation of the acquired land he considered the award value of the land at Premises No. 77 Park Street. No sale transaction relating to any nearby property proximate in time to the acquired land was taken into consideration in ascertaining the market price. In the circumstances, the L.A Judge did not err in excluding from consideration the evidence of these two witnesses who simply supported the comparable unit adopted by the L.A Collector without assigning convincing reasons.
17. Pursuant to the foregoing discussion it is clear that the compensation determined by the L.A Collector is far from fair and reasonable. In terms of Section 19 cl(d) of the Act, it is incumbent on the Collector in making a reference under Section 18 of the Act to state the grounds on which the amount of compensation was determined. In the instant case the Collector could not justify the award before the L.A Judge whereas the evidence adduced by the claimant goes to show that the amount offered by the Collector was insufficient and not in accordance with the market price prevailing in the locality at the relevant time.
18. Coming to the citations referred on behalf of the appellant, we find that the judgement reported in (1995) 5 SCC 310 (Painder Singh and others versus Union of India and others) is clearly distinguishable on facts from our present case. In the reported judgement it has been held that the valuation of land fixed by the Government under the Stamp Act for fiscal purpose is not relevant. The claimant must prove that the acquired land and the land covered by the sale transaction bear similar or same potentialities or advantageous features. In our instant case the judgement of the Reference Court reveals that no such irrelevant evidence was relied upon in determining the valuation of the acquired land. In fact, such evidence was clearly excluded from consideration in deciding the amount of compensation. The case law reported in (1996) 3 SCC 124 (U.P. Jal Nigam, Lucknow through its Chairman and another versus Kalra Properties (P) Limited, Lucknow and others) is also of no assistance to the appellant since the compensation has been determined by the Reference Court on the basis of the market value prevailing at the relevant time by relying upon the certified copy of the sale deed (Exhibit 7) on being satisfied regarding the bona fide nature of the said sale transaction. The judgement reported in (2010) 15 SCC 60 (Executive Engineer (Electrical), Karnataka Power Transmission Corporation Limited versus Assistant Commissioner and Land Acquisition Officer, Gadag and others with Malimath D. Kallolegi and others versus Assistant Commissioner and Land Acquisition Officer, Gadag and others) also does not appear to be of any help to the appellant. Learned Counsel for the appellant could not substantiate his submission by referring to any evidence on the point that the property at 91 A Park Street accepted as the comparable unit by the Reference Court is far away from the acquired land. On the contrary, there is evidence on record to show that the said property is in the vicinity that is, by the side of the acquired land. In the case law referred the Apex Court held that when a sale transaction relating to a nearby land, of the year 1994 itself, proximate in time to the date of preliminary notification is available, as in our case in hand, there is no justification to refer to or rely upon sales which took place three years ago and that too in regard to lands which are far away from the acquired land. We have the clear finding of the Reference Court based on evidence hereinabove discussed that Premises No. 77 Park Street is away from the acquired land. So this judgment is of no avail to the appellant. In fact, it supports the case of the claimant. Lastly, the case law reported in AIR 1990 Supreme Court 2192 (Periyar and Pareekanni Rubbers Limited versus State of Kerala) referred by the learned Counsel for the appellant is also of no aid since the claimant adduced relevant evidence to establish that the amount offered by the L.A Collector was not based on the prevailing market price of land. It was inadequate and unreasonable.
19. We are therefore satisfied that the amount of compensation determined by the L.A Judge on sound reasoning is just, fair and reasonable. The Reference Court was justified in enhancing the compensation to Rs.8,59,070/- per cottah. There is also no reason to interfere with the statutory benefits awarded by the L.A Judge.
20. Consequently, the judgement and decree of the Special L.A Judge Alipore, District- 24 Parganas (South) in L.R.A Case No. 96 of 1997 and 97 of 1997 stand affirmed.
21. The appeal is accordingly dismissed but, in the circumstances, without costs.
22. It is on record that the appellant has already deposited Rs.46,86,832.26p and thereafter an amount of Rs.6,00,00,000/- has been deposited. The aforesaid amount has admittedly been withdrawn by the claimant.
23. We direct the appellant to deposit the balance amount in terms of the judgement and decree of the Special L.A Judge with the Registrar General of this Court within two months from this day. Upon such deposit, the claimant/respondent no. 1 shall be entitled to withdraw the same. The Registrar General shall permit the claimant/respondent no. 1 to withdraw such deposit on proper identification and receipt.
24. Interim orders stand vacated.
25. L.C.R be returned to the Trial Court forthwith.
26. Urgent Photostat certified copies of this judgement shall be supplied to the parties, if applied for, subject to compliance of requisite formalities.
(Asha Arora, J.) (Nishita Mhatre, J.) Later
After the judgment is pronounced in open Court, Mr. Anirban Ray, the learned Counsel appearing on behalf of the Appellant in both the Appeals, seeks a stay of the order. We are not inclined to grant his prayer. However, the Bank Guarantee which has been furnished by the Respondents while withdrawing the amount of Rs.6,00,00,000/- shall not be revoked for a period of two months.
(Nishita Mhatre, J.) (Asha Arora, J.)