Judgment:
B.P. Katakey, J.
1. These appeals by the owners of the land (claimants) Under Section 54 of the Land Acquisition Act, 1894 (in short, the Act) are directed against the judgment and award dated 12-6-2001 passed by the learned L. A. Judge, West Tripura, Agartala, Court No. 2 in Misc. (LA) Case Nos. 8/95, 7/96, 8/96 and 9/96 rejecting the claim of the claimants for enhancement of the amount of compensation in respect of the land acquired by the L.A. Collector under the provisions of the Act for a public purpose.
A notification Under Section 4(1) of the Act was issued on 28-2-90 intimating all concerned that a plot of land measuring .87 acres, which comprises vitti land (developed land) and Nal land (paddy land) is needed or likely to be needed for a public purpose, namely construction of Jogendranagar Market. The said notification was followed by the declaration Under Section 6 of the Act issued on 5-3-90. The possession of the land was taken over by the authority on 17-5-90 and the LA Collector has passed the award on 17-10-90 awarding Rs. 1,50,000/- per Kani and Rs. 45,000/- per Kani for the vitti land and Nal land, respectively. The claimants appellants, being not satisfied with the quantum of compensation awarded by the LA Collector in respect of their land (Nal land), filed an application under Section 18 of the Act for reference of the dispute relating to the quantum of compensation to the competent Court and accordingly the references were made by the LA Collector to the competent Court, on the basis of which Misc. (LA) Case Nos. 8/95, 7/96, 8/96 & 9/96 are registered before the learned LA Judge. The claimants/appellants filed their written statement in the said proceedings in support of their claims. The LA Collector has also contested the said proceedings by filing objection to the prayer for enhancement of the compensation.
3. The claimants-appellants in their written statement before the learned L.A. Judge have claimed Rs. 20,00,000/- per Kani contending inter alia that the amount of Rs. 45,000/- per Kani awarded by the LA Collector in respect of the Nal land (paddy land) is highly inadequate, as the acquired land is adjacent to Agartala town and therefore, in the developed area. The further case of the claimants/appellants is that the Tripura Gramin Bank, SDO Office, office of the PHE Department, schools, colleges, police station, cinema hall, panchayat office, stadium, etc. are situated near the land and the area has all modern facilities like water supply, electricity connections, motorable road etc. According to the claimants/appellants, the land is situated by the side of the Agartala-Anandanagar Road having high potential value. In the objection filed by the LA Collector, it has been stated that true market value of the acquired land has been assessed as required under the Act, which has been done on the basis of the sale deeds of the comparable land in the vicinity. The LA Collector has further contended that the land is low lying land and after its acquisition the land was developed to make the same suitable for construction of the Jogendranagar Market. The LA Collector also denied the claim of the claimants-appellants that the acquired land is situated in the commercial area and adjacent to Agartala town as well as the MBB College, Tripura University and Hospitals. The LA Collector, however, has admitted that modern facilities are available in the vicinity of the acquired land.
4. The claimants-appellants in order to substantiate the claim have examined 1 witness each in all the 4 Misc. (LA) cases who are the claimants themselves and are cross-examined by the LA Collector. They have also proved 4 sale deeds and 1 map, which are marked as Ext. 1 series and Ext. 2 respectively. The LA Collector has also examined 1 witness in support of the stand taken in the written objection who has also proved 4 (four) sale deeds marked as Ext. A series; the notification issued Under Section 4(1) of the Act, assessment note, copy of the map, collectively marked as Ext. B; assessment note as Ext. C; and a hand sketch map as Ext. D.
5. The learned LA Judge upon consideration of the evidences on record, both oral and documentary, has rejected the LA cases, registered on the basis of the reference made by the LA Collector, by holding that the claimants-appellants have failed to demonstrate that the true market value of the acquired land has not been awarded by the LA Collector, as required under the Act.
6. Since all the appeals arise out of the same acquisition proceeding as well as against the common judgment and order passed by the learned LA Judge and the nature of the land in respect of which enhanced amount of compensation is claimed by the appellants is same i.e. Nal land (paddy land), those are taken up together for hearing and disposal, as agreed to by the learned Counsel for the parties.
7. I have heard Mr. S. M. Chakraborty, learned senior counsel for the appellants as well as Mr. A. Ghosh, learned Counsel for the LA Collector.
8. Mr. Chakraborty, learned senior counsel for the claimants, referring to the deposition of the witnesses examined in support of their claim as well as the sale deeds marked as Ext. 1 series, has submitted that it is evident from the evidence available on record that the land in question is situated by the side of Agartala-Anandanagar Road having Govt. offices, high school, college etc. in the vicinity and also having great potential value as it has all modern facilities like water supply, pitched road etc. and as such, the learned LA Judge ought to have assessed the market value of the acquired land by taking into account the Ext. 1 series sale deeds which are in the vicinity of the acquired land, so also potentiality of the land. According to the learned senior counsel, acquisition of land for the purpose of construction of a market though reflects its potential value, the learned LA Judge without considering the said aspect of the matter has rejected the claim of the claimants-appellants. Mr. Chakraborty further submits that the witness examined by the LA Collector who has proved the sale deeds (Ext. A series) which are the basis for fixing the market value of the acquired land as Rs. 45,000/- per Kani by the LA Collector being not in the vicinity and comparable to the land acquired and admittedly being 1 to 2 1/2 furlong interior to the acquired land, the learned LA Judge ought to have enhanced the amount of compensation in respect of the acquired land on the basis of the sale instances (Ext. 1 series) proved by the appellants as well as the potential value of the land. Mr. Chakraborty, in support of his contention has placed reliance on two decisions of the Apex Court in Ravinder Narain v. Union of India : (2003) 4 SCC 481 : AIR 2003 SC 1987 and Gafar v. Moradabad Development Authority : (2007) 7 SCC 614 : AIR 2008 SC (Supp) 1628.
9. Mr. Ghosh, learned Counsel for the LA Collector, supporting the award passed by the LA Collector as well as the judgment and award passed by the learned LA Judge has submitted that while fixing the market value of the acquired land, sale instances of comparable land can be the basis and in the instant case, the sale instances proved by the LA Collector and market as Ext. A series are all comparable land, hence the LA Collector has rightly fixed the market value of the Nal class of acquired land at Rs. 45,000/- per Kani. It has also been submitted by the learned Counsel that the sale instances proved by the claimants-appellants and marked as Ext. 1 series cannot be the basis for ascertainment of the market value of the acquired land and for enhancement of the compensation as awarded by the LA Collector, the land involved in the said sale instances admittedly being vitti land (developed land) having structures thereon and also for small portions of the land as well as being not in the vicinity of the acquired land. The learned Counsel, therefore, submits that the learned LA Judge has rightly rejected the claim of the claimants-appellants for enhancement of the amount of compensation, they having failed to substantiate such plea.
10. I have considered the submissions of the learned Counsel for the parties and also perused the materials available on record including the judgment and award passed by the learned LA Judge.
11. The learned LA Judge, has rejected the claim for enhancement of the compensation on the ground that the claimants-appellants could not substantiate their claim for such enhancement and the sale instances proved (Ext. 1 series) are not of comparable land in the vicinity of the acquired land, those being the vitti land (developed land) having structures thereon and in respect of small portions of land. The learned LA Judge has also rejected the contention of the claimants-appellants relating to the potentiality of the land by holding that there exists no modern amenities in the vicinity of the acquired land and there is no bank, post office, college, school or stadium, as contended by the claimants-appellants in the vicinity of the land.
12. It is not in dispute that the land involved in the present appeals is Nal land (paddy land). The LA Collector has awarded Rs. 45,000/- per Kani in respect of the said class of land and Rs. 1,50,000/- per Kani in respect of the vitty land (developed land), which class of land is not concerned in the present appeals. The total area of land acquired for the purpose of construction of Jogendranagar Market vide the notification dated 28-2-90 issued Under Section 4(1) of the Act was 0.87 acres. Out of the said acquired land, 0.14 acres belongs to the appellant in LA Appeal No. 8/2001; 0.15 acres each belongs to the appellants in LA Appeal Nos. 7/2001 & 9/2001; 0.16 acres belongs to the appellant in LA Appeal No. 10/2001; and 0.21 acres belongs to the appellant in LA Appeal No. 11/2001.
13. The claimants-appellants having claimed that the compensation awarded to them by the LA Collector is not adequate, the burden lies on them to substantiate the same and to prove the amount of compensation claimed by them by adducing cogent evidence. One of the methods of ascertaining the true market value of the acquired land is the sale instances of comparable land in the vicinity of the acquired land and in and around the date on which Section 4(1) notification has been issued. It is always not that the sale instances of the small portions of land cannot be taken into consideration for the purpose of ascertaining the market value of larger extents of acquired land. Such sale instances can be taken into consideration by making necessary deduction/adjustment, if no other relevant sale instances of comparable land relating to larger extent is not available. There is always some amount of guess work involved while determining the potentiality, however, its value has to be determined on the basis of the materials available on record. Once the burden is discharged by the claimants, the onus shifts on the LA Collector to justify the award passed Under Section 11 of the Act.
14. Section 23 of the Act stipulates the materials to be considered in determining the compensation by the Court in respect of the land acquired under the Act. The compensation to be awarded has to be the market value of the land at the date of the publication of the notification Under Section 4(1) of the Act. While awarding the compensation the Court is also required to take into consideration the damages, if any, sustained by the interested person, by reason of the taking of any standing crops or trees which may be on the land at the time of the taking possession by the Collector, the damage, if any, sustained by such person by reason of severing such land from his other land; the damage, if any, sustained by such person by reason acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings. The Court is also required to take into consideration as to whether in consequence of acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business including the reasonable expenses, if any, incidental to such change, apart from the damage, if any, bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collector's taking possession of the land. The Court under Sub-section (1A) of Section 23 of the Act is also required to award an amount calculated @ 12% per annum on the market value assessed for the period commencing on and from the date of publication of the notification Under Section 4(1) of the date of award of the Collector or the date of taking possession of the land, whichever is earlier. That apart, a sum of 30% on such market value, in consideration of compulsory nature of the acquisition, under Sub-section (2) of Section 23 of the Act is also to be awarded by the Court. Section 24 of the Act stipulates the matters to be neglected in determining compensation.
15. The Apex Court in Ravinder Narain (AIR 2003 SC 1987) (supra) has observed that the market value of the land acquired has to be determined correctly so that there is no unjust enrichment on the part of the acquirer nor undue deprivation on the part of the owner. The price which willing vendor might reasonably expect to receive from the willing purchaser must be taken into consideration while at the same time disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy it must be disregarded. It has further been observed that where there is no other material available, it is open to the adjudicating Court to make compensation of the prices paid for small plots of land subject to necessary deduction/adjustment. There is naturally bound to be some amount of guesswork involved while determining the potentiality. Value of the potentiality, however, is to be determined on the basis of the materials available on record and without indulging in any fits and imagination. The Apex Court has further observed that the element of speculation is reduced to a minimum while fixing the market value with reference to the comparable sale transactions in the vicinity of the acquired land within the reasonable time of the date of notification Under Section 4(1) of the Act and having similar advantages.
16. In Gafar AIR 2007 SC (Supp) 1628 (supra), the Apex Court has observed that there is no absolute prohibition in taking note of the rates fixed for sale of smaller plots and making it the basis for fixation of compensation for larger extents of land. The Apex Court, however, has observed that normally when larger extents are involved in an acquisition, it will be more prudent to rely on the sale deeds of larger extents and not to base the assessment of the compensation on values fetched at sales of small extents. In the said case also, the Apex Court has observed that assessment of the market value involves an amount of guess work, based on evidence available regarding the comparable lands in the locality. The market value of the larger extents of the acquired land can, however, be ascertained on the basis of the sale instances of the smaller extents of land by making the necessary deduction from the sale instances, in case no sale instances for larger extents of comparable land and in the vicinity of the acquired land in an around the date of issuance of notification Under Section 4(1) of the Act is not available.
17. In the instant cases, the claimants-appellants have proved 4 sale instances, which are marked collectively as Ext. 1 series. Three of the sale deeds were executed in the month of November, 1988 and one in the month of November, 1984 involving very small portions of developed land i.e. the vitti land having structures thereon. The rate at which such transactions in the said sale instances made was around Rs. 2,40,000/- per Kani. The witnesses examined on behalf of the claimants-appellants have though stated on oath that the lands involved in the said sale transactions are in the same Mouza namely Jogendranagar Mouza, where the acquired land is situated, the map proves by them (Ext. A) does not show that the same are in the vicinity of the acquired land. The said sale transactions cannot, therefore, be the basis for determining the market value of the acquired land. .
18. The 4 (four) sale deeds proved by the LA Collector, which are collectively marked as exhibit Ext. A series, were made in between January and December, 1989. The Ext. E hand sketch map proved by the LA Collector goes to show that the land involved in the said sale instances proved by the LA Collector are at a distance of about 1 to 2 1/2 furlong interior to the land acquired. The lands involved in the said sale transactions are not by the side of the main road. One of such sale transaction dated 3-4-1989 in respect of same class of land as the acquired land i.e. Nal land, demonstrates that the land was sold at Rs. 40,000/- per Kani, but the said land is also about 2 furlong interior to the land acquired. It appeal's that the LA Collector has relied upon the said sale transaction while awarding Rs. 45,000/- per Kani as compensation. The said sale transaction being of same class of land can be relied upon for the purpose of ascertaining the market value of the acquired land, but with necessary enhancement of value because of the position of the acquired land as well as the date of issuance of the notification under Section 4(1) of the Act, which is almost 10 (ten) months after the date of such sale transaction. The said land is in an interior place (Ext. E hand sketch map) having no facility as of in the acquired land. Therefore, the market value of the acquired land (Nal class of land) has to be ascertained on the basis of the said sale transaction by necessary enhancement of the value.
19. It also appears from the deposition of the witnesses examined by the claimants-appellants that the acquired land is adjacent to the existing Jogendranagar Market, though it is paddy land. There are also materials available on record that all modern facilities like electricity, pitched road, water connection, etc. are available in the vicinity of the acquired land. The LA Collector in his objection filed before the learned LA Judge has also admitted the same. The Ext. E hand sketch map showing the location of the acquired land, which has been proved by the LA Collector before the learned LA Judge, substantiates the plea of the claimants-appellants that the acquired land has roads in two' sides, (i) main road from Agartala to Anandnagar, and (ii) road leading to the villages. It also reveals from the said hand sketch map that by the side of the acquired land, Jogendranagar Market exists. From the said evidences on record it can, therefore, be safely held that the acquired land, has the potential value which is also required to be taken into consideration while ascertaining the amount of compensation payable on the basis of the market value of the land.
20. Keeping in view the aforesaid discussion including the position of the land involved in the sale transaction dated 3-4-1989 (Part of Ext. A series) proved by the LA Collector and also the fact that the notification under Section 4(1) has been issued in the cases in 'hand almost 10 (ten)' months from the date of such sale transaction as well as the potential value of the land, in my considered opinion the Rs. 60,000/- per Kani would be the appropriate market value of the land involved in these appeals. Hence the compensation payable for the acquisition of the said land is fixed at Rs. 60,000/- per Kani. The claimants-appellants shall also be entitled to the interest under Sub-section (1A) as well as solatium under Sub-section (2) of Section 23 of the Act on such enhanced amount apart from the interest payable under Section 34 of the Act.
21. The common judgment and order dated 12-6-2001 passed by the learned LA Judge is accordingly set aside. The appeals filed by the claimants-appellants are allowed to the extent indicated above. However, keeping in view the facts and circumstances of the case, the parties are directed to bear their own costs.