Tripura High Court
Tripura Housing And Construction Board vs Smti. Chabi Das on 1 December, 2017
Author: S. Talapatra
Bench: S. Talapatra
THE HIGH COURT OF TRIPURA
AGARTALA
LA APP.NO.02 OF 2015
Tripura Housing and Construction Board,
represented by its Deputy Executive Officer,
Gurkhabasti, Agartala-799 006,
West Tripura
............ Appellant
- Vs -
1. Smti. Chabi Das,
w/o Shri Nityananda Das,
resident of Viveknagar,
P.S. Amtali, Pin-799 130,
District-West Tripura
............ Claimant-respondent
2. The Land Acquisition Collector, West Tripura, Agartala-799 001 ............ Proforma-respondents CO(FA) NO.7 OF 2015
1. Smt. Chabi Das, w/o Shri Nityananda Das, resident of Viveknagar P.O. Amtali, P.S. Amtali District-West Tripura ............ Cross-objector
- Vs -
1. The Deputy Executive Officer, Tripura Housing and Construction Board, Agartala, West Tripura
2. The Land Acquisition Collector, West Tripura, Agartala ............ Respondents BEFORE THE HON'BLE MR. JUSTICE S. TALAPATRA For the appellant in the appeal : Mr. D. Chakraborty, Sr. Advocate and for the respondent in the Mr. P. Dutta, Advocate cross-objection For the claimant-respondent in Mr. K.N. Bhattacharjee, Sr. Advocate the appeal and for the cross- :
Mr. R. Debnath, Advocate objector in the cross-objection LA APP NO.02 OF 2015 AND CO(FA) NO.7 OF 2015 Page 1 of 9 Date of hearing and delivery of : 01.12.2017 judgment and order Whether Fit for Reporting : Yes No √ JUDGMENT & ORDER(ORAL) Both the appeal being LA App. No.02 of 2015[Tripura Housing and Construction Board vs. Smt. Chabi Das & Anr.] and the Cross-Objection being CO(FA) No.7 of 2015[Smt. Chabi Das v. Deputy Executive Officer, Tripura Housing and Construction Board & Anr.] are combined for disposal by a common judgment as these appeal and the cross-objection arise from the same judgment and award dated 04.04.2014 delivered in the reference case No.Misc.(L.A.) 173 of 2011.
2. There is no dispute that from the cross-objector an area of land measuring 0.10 acre of lunga class under khatian No.830, plots No.1026 and 1027 mouja Kunjaban, sheet No.2/P had been acquired having the process initiated by the Notification No.9(1)-
REV/ ACQ/VI/08 dated 21.01.2008 under Section 4 of the Land Acquisition Act, 1894 followed by the declaration dated 09.04.2008 under Section 6 of the said Act. Under Section 11 of the Land Acquisition Act, the Land Acquisition Collector, in short, the LA Collector, West Tripura, Agartala had determined the rate of the acquired land at `5,36,000/- per kani.
3. Being aggrieved, the cross-objector pressed for a reference under Section 18 of the said Act being Misc.(L.A.) No.173 LA APP NO.02 OF 2015 AND CO(FA) NO.7 OF 2015 Page 2 of 9 of 2011 which has been determined by the impugned judgment and award dated 04.04.2014. By the said judgment the L.A. Judge has enhanced the rate to `27,00,000/- per kani providing all the consequential effects on the other components of compensation as provided under Section 23 of the L.A. Act.
4. Mr. P. Dutta, learned counsel appearing for the appellant has raised two grounds of objection. For elucidation, Mr. D. Chakraborty, learned senior counsel has submitted that for purpose of determining the rate, the L.A. Judge has relied on the sale deed No.1-5765 dated 13.08.2007(part of Exbt.1 series) by discarding the other sale deeds as admitted in the evidence. Further, the L.A. Judge has relied on the judgment and award dated 27.01.2010 delivered in Misc.(LA) No.43 of 2005 where the rate was given at the rate of `13,54,000/- per kani in the year 2002.
5. Mr. Chakraborty, learned senior counsel has seriously questioned the analogy as adopted for determining the enhanced rate by the L.A. Judge. He has criticized the observation that has been made in para 14 which reads as under:
"14. On the aforesaid analogy, the price escalation may be taken for six years. The assumed market value of land on 19.02.2002 as per the judgment of learned L.A. Judge above referred being `.13,54,000/- per kani, the price after six years as per the calculation shown in para 13 would be `.26,72,552/- say `.26,73,000/-. Making a comparison of the price arrived at para 10 above and this price, the market value of the acquired land on the date of notification is assessed at `.27,00,000/- per kani." LA APP NO.02 OF 2015 AND CO(FA) NO.7 OF 2015 Page 3 of 9
6. Mr. Chakraborty, learned senior counsel has submitted further that the L.A. Judge did not make any attempt to establish the location of the land as recorded in the judgment and award dated 27.01.2010 and similarly he has also not taken any care to locate the land as described in the sale deed dated 13.08.2007 for purpose of fair comparison. But he has relied on those documents. He has further submitted that no opportunity was given to the appellant to have their say on the said judgment and award dated 27.01.2010. That apart, he has raised another aspect that from a bare reading of the testimony of PW1, the claimant, it would be apparent on the face that there was no attempt to show the location of the acquired land whether it is situated in the close proximity of the land as demised in the sale deed dated 13.08.2007 or not. Therefore, the purported analogy is based on no evidence and requires interference by this Court.
7. From the other side Mr. K.N. Bhattacharjee, learned senior counsel appearing for the cross-objector has emphatically submitted that the analogy that has been adopted by the L.A. Judge is based on the sound logic and appreciation of the evidence. He has further submitted that even the witness from the L.A. Collector, namely Sri Debananda Debbarma, OPW1 has in his cross- examination stated as under:
"I did not personally visit the spot. The acquired land was located in the Agartala Municipal area at the time of acquisition. It is located on the North-East side of the GB market. On the North of the GB market some land was acquired for the Capital Complex constructions in the year 2002. I did not file any revenue map to LA APP NO.02 OF 2015 AND CO(FA) NO.7 OF 2015 Page 4 of 9 prove the distance between the acquired land and land fo the sale deeds. It is not a fact that as there is sufficient distance between the two lands, the revenue map has not been filed. It is not a fact that my deposition in Para-4 & are incorrect. It is not a fact that LA Collector did not take into consideration the 7 sale deeds as stated in the affidavit-in-chief. It is not a fact that adequate market value was not fixed by the LA Collector."
8. According to Mr. Bhattacharjee, learned senior counsel, it is thus apparent that the land acquired is situated in a prime location and the rate of acceleration would be much higher than the ordinary land situated anywhere or the nearby places.
9. Having appreciated, this Court is in a real quandary how the L.A. Judge has relied those documents without ascertaining the location of the land vis-à-vis the land described in the sale deed dated 13.08.2007. The laid-down principles have not been conformed to by relying on the exemplar sale deed and the judgment dated 27.01.2010. A reference has been made to a decision of the apex Court in General Manager, ONGC Ltd. v. Rameshbhai Jivanbhai Patel & Anr reported in 2008 AIR SCW 5947 where the apex Court has quite eloquently observed that the increase in land prices depends on four factors--location of the land, nature of development in surrounding areas, availability of land for development in the area and the demand for land in the area. In rural areas unless there is any prospect of development in the vicinity, increase in prices would be slow, steady and gradual without any sudden spurt. On the other hand, in urban or semi- urban areas, where the development is faster, where the demand for the land is high and where there is construction activities all LA APP NO.02 OF 2015 AND CO(FA) NO.7 OF 2015 Page 5 of 9 around, the escalation in market price is at much higher rate, as compared to rural areas. In some pockets in big cities, due to rapid development and high demand for land, the escalations in prices have touched even 30% to 50% or more per year, during the Nineties. On the other extreme, in remote rural areas where there was no chance of any development and hardly any buyers, the prices remain stagnated for years or rose marginally at a nominal rate of 1% or 2% per annum. There is thus a significant difference in increase in the market value of land in urban/semi-urban areas and increase in the market value of land in the rural areas. Therefore, if the increase in market value in urban/semi-urban areas is about 10% to 15% per annum, the corresponding increases in rural areas would at best be around half of it, that is about 5% to 7.5% per annum. This rule of thumb refers to the general trend in the Nineties, to be adopted in the absence of clear and specific evidence relating to increase in prices. Where there are special reasons for applying a higher rate of increase, there is any specific evidence relating to the actual increase in prices, then the increase to be indexed would depend upon the same.
10. This Court has opportunity to look at the assessment sheet of the L.A. Collector as that was the part of the reference wherefrom it emerges that the L.A. Collector considered the following sale deeds along with the map for purpose of getting a rate therefrom. The particulars of those sale deeds are as follows: LA APP NO.02 OF 2015 AND CO(FA) NO.7 OF 2015 Page 6 of 9
Mouj Plot Class Area Deed Total Value of Distance Sl. a No. of in No. & value land per from the No. land acre date of land kani land proposed to be acquired 1 2 3 4 5 6 7 8 9
1. Kunj 1204 Bhiti 0.10 1-1912 Rs.50,0 Rs.2,00,0 2130 feet aban dt. 00/- 00/-
She 14.02. et 05 No.3 2. -do- 1268 Bhiti 0.03 1-7406 Rs.23,0 Rs.3,06,6 2510 feet dt. 00/- 67/- 23.06. 06 3. -do- 1602 Nal 0.08 1-3604 Rs.50,0 Rs.2,50,0 1450 feet dt. 00/- 00/- 21.05. 07 4. do 1356 Bhiti 0.06 1- Rs.60,0 Rs.4,00,0 1420 feet 1362 6005, 00/- 00/- 1363 1-6006 1364 dt. 21.08. 07 5. do 1086 Bhiti 0.04 1-150 Rs.1,00 Rs.10,00, 350 feet dt. ,000/- 000/- 08.01. 08 6. do 1085 Bhiti 0.31 1-8468 Rs.2,32 Rs.3,00,0 220 feet dt. ,500/- 00/- 25.07. 05 7. do 1079 Bhiti 0.041 1- Rs.32,0 Rs.3,07,6 320 feet 6 10400 00/- 92/- dt. 09.09. 05
11. Thereafter, the L.A. Collector determined the rate at `5,36,000/- per kani. The L.A. Judge did not look at these aspects of the matter. But at the same time, following the principle of Rameshbhai Jivanbhai Patel(supra), the L.A. Collector also did not consider the factors of accelerating rate for purpose of development and for the prime location of the acquired land.
12. Admittedly, the land was acquired for construction of the apartments by the appellant. It does itself show that the land is LA APP NO.02 OF 2015 AND CO(FA) NO.7 OF 2015 Page 7 of 9 in the prime location and there is a viability of sale of the flats in that area. Moreover, even OPW2 has stated that the land is situated within 500 meters from the State Secretariat and the other witness has stated that it is situated within 200 meters from a premiere hospital called the ILS Hospitals at Agartala. These are the very relevant factors to get the base rate. Again there is another difficulty vis-à-vis the lunga class of land. Even the sale deeds as relied on by the L.A. Collector, those are not related to the location of the land vis-à-vis the acquired land. From the chart it appears that viti class of land according to the chart was purchased on 08.01.2008 at `10,00,000/-. Having regard to the accelerating factors, the development activities and the location of the land, this Court is of the view that a sum of `18,00,000/- per kani, would be the appropriate land rate at the relevant point of time. The said rate has been determined having regard to the due discount from the price of the land as the standard method. The compensation, therefore shall be calculated based on the said rate under Section 23 of the L.A. Act, 1894 meaning the solatium has to be determined under Section 22(2) at the rate of 30% on the basis of the said rate, additional compensation in terms of Section 23(1)(a) of the L.A. Act at the rate of 12% and other components as have been determined by the L.A. Collector. It is made clear that both the solatium and the additional compensation shall carry interest in terms of Section 34 of the L.A. Act.
13. In view of this, the appeal stands partly allowed whereas the cross-objection is dismissed.
LA APP NO.02 OF 2015 AND CO(FA) NO.7 OF 2015 Page 8 of 9
Prepare the award [the decree] in terms of the above. Thereafter, send down the records.
JUDGE LA APP NO.02 OF 2015 AND CO(FA) NO.7 OF 2015 Page 9 of 9