JUDGMENT
P.N. Sinha, J.
1. This appeal preferred by the claimant appellant is directed against the judgment and decree dated 19th February, 1998 passed by the learned Judge. L.A. Court (3rd Court), Barasat, Dist 24-Parganas (North). The appellant has preferred the instant appeal being dissatisfied with the valuation of the acquired land assessed by the learned Judge over his application for reference made by him being dissatisfied with the award made by the Collector. 24-Parganas (North) dated 31.8.1992 and also against amount of solatium fixed by the learned Judge.
2. The facts of the case giving rise to the instant appeal is that, the L.A. Collector, 24-Parganas (North) in Case No. L.A. 11/100 of 1987-88 acquired lands of the claimant totalling 2.85 acres in R.S. Plot Nos. 3321E, 3340E, 3341E, 3342E, 3343E, 3344E, 3348P and 3351P in JL No. 9 of Mouza Sukhchar within P.S. Kharda for the purpose of Subhas Nagar Squatters colony. The Land Acquisition Collector took possession of the said land on 20.9.1988. A notification bearing No. 2451-L.A.-II under Section 4 of the Land Acquisition Act was published in the Calcutta Gazette on April 12, 1989 acquiring the said lands of the appellant. The Collector passed an award of Rs. 7,30,535.07p. which includes total value of lands Rs. 4,07,676.36p. amount of solatium @ 30% Rs. 1,22,302,90p. interest @ 9% on land value plus solatium for the period from 12.4.1989 to 11.4.1990 Rs. 47,698.13p. interest at the rate of land value plus solatium for the period from 12.4.1990 to 11.4.1992 Rs. 1,39,119.55p. and recurring compensation @6% on land value for the period from 19.9.1988 to 11.4.1989 Rs. 13,738.30p. The claimant being dissatisfied with the award made by the Collector made the reference under Section 18 of the Land Acquisition Act. The Land Acquisition Collector, 24-Parganas (North) referred the said reference application before the learned L.A. Judge. 24-Parganas (North) at Barasat. The Claimant accepted the amount of Rs. 7,30,535.07p. awarded by the L.A. Collector under protest.
3. The reference under Section 18 of the L.A. Act was made by the claimant appellant alleging that the acquired lands were not properly valued by the L.A. Collector and the L.A. Collector did not consider the market value of the lands which were much higher than what was determined at Rs. 1,69,512/- per acre i.e. Rs. 2,801.85p, per cottah for danga, bagan and bastu lands and Rs. 42,378/- per acre i.e. Rs. 700.46p. per cottah for doba. The claimant claimed higher market value for the acquired land and contended that land value should have been Rs. 30,000/- per cottah.
4. The matter was heard by the learned L.A. Judge and he delivered the judgment on 19th February, 1998 and assessed value of the acquired lands at the rate of Rs. 11,554/- per cottah for the danga, bastu and bagan class of land and at the rate of Rs. 5,775/- per cottah for doba class of land. Learned judge allowed solatium @ 30% of the total value and recurring compensation @ 9% p.a. from 20.9.1988 to 11.4.1989 on entire land value and interest @ 9% p.a. for entire compensation for first year from date of notification i.e., from 12.4.1989 to 11.4.1990 and thereafter @15% p.a. from 12.4.1990 till the entire amount is paid in full, less the amount already paid by the L.A. Collector. The learned Judge also allowed additional compensation @ 12% p.a. on the entire market value from 12.4.1989 to 31.8.1992.
5. Mr. S.P. Roy Chowdhury, learned advocate appearing for the claimant appellant contended that the learned L.A. Judge did not assess the value of the lands properly. At the time of hearing three deeds were produced on behalf of the claimant and four deeds were produced on behalf of the State of West Bengal to show value of adjoining lands at the relevant time. The sale deeds produced on behalf of the State are situated at far distance and were not comparable with the lands which were acquired. But the learned Judge made calculation of average valuation of these seven deeds and made the award on the basis of such average valuation which was totally misconceived and illegal. He contended that the L.A. collector acquired the lands of the claimant appellant situated in Sheet No. 7 of Mouza Sukhchar within P.S. Kharda and before the learned Judge the claimant produced three deeds of Sheet No. 7. One of the deed was dated 15th September, 1988 which is almost the identical date of taking possession by the State over the acquired land as the State took possession on 20th September, 1988. The other two deeds were dated 1st December, 1988 and 29th December, 1988. The State produced four deeds and the lands’ of the said deeds are situated in Sheet Nos. 2, 3 and 4 of the Mouza map and situated far away from the B.T. Road whereas the acquired land and the lands in respect of which three deeds were produced by the claimant are situated in Sheet No. 7 of Mouza map.
6. He further contended that the learned Judge failed to appreciate that value of acquired property is deemed to be value to the seller of the property in its actual condition at the time of expropriation with all its advantages and possibilities learned Judge did not consider that compensation must be determined at a price which a willing vendor might reasonably expect to obtain from a willing purchaser and the appellant is entitled to get compensation at a reasonable rate which should be much higher than the awarded rate. He further contended that the learned Judge made error in determining the value of garden i.e. bagan at the same rate with other “land. He contended that as per Section 3(a) of the L.A. Act the explanation ‘land’ includes benefits which arise out of the land and things attached to earth or permanently fastened to anything attached to the earth. Therefore, while assessing value of bagan the value of trees, building and standing crop should have been considered by the learned Judge.
7. Mr. Soumen Dasgupta, appearing for the respondent State of West Bengal contended that the learned Judge made no mistake by assessing value of the land. The Collector made the award assessing value of the danga, bagan and bastu land @ Rs. 2,801.85p. per cottah whereas the learned Judge assessed valuation of the above said class of lands at a much higher rate and @Rs. 11,554/- per cottah. He contended that the deeds produced on behalf of the State before the learned Judge was also of the year 1988 i.e., almost of the relevant time when the acquisition was made. It may be that the lands for which the deeds were produced by the State are at some distance but this itself cannot be a ground to assess value of land at the rate which the claimant expected in his reference petition. Average valuation as made by the learned Judge cannot be regarded as bad in law.
8. After hearing the arguments made by the learned advocates of both parties and going through the materials on record we find that L.A. Collector, North 24-Parganas acquired total 2.85 acres of land of the claimant appellant in R.S. Plot Nos. 3321, 3340, 3341, 3342, 3343, 3344, 3348, 3351 for the purpose of Subhas Nagar Squatters Colony. It is admitted that the notification under Section 4 of the L.A. Act was published on 12th April, 1989 and the State of West Bengal took possession of the acquired lands on 20th September, 1988. It is also admitted that the L.A. Collector made the award on 31st August, 1992. It appears that the L.A. Collector made an award of Rs. 7,30,535.07p. including total land value, solatium @30%, interest on land value, interest @ 9% from 12.4.1989 to 11.4.1990 interest @15% on land value plus solatium from 12.4.1990 to 11.1.1992 and recurring compensation @ 6% on land value. It is clear that the L.A. Collector assessed value of danga, garden and bastu class of land @ Rs. 2,801.85p. per cottah and assessed value of doba class of land @ Rs. 700.46 per cottah.
9. It appears that, thereafter, being dissatisfied with the award particularly on the valuation of land the claimant made reference under Section 18 of the L.A. Act and the learned L.A. Judge who heard the L.A. reference assessed value of danga, bastu and garden class of land at a rate ofRs. 11,554/- per cottah and value of doba class ofland @ Rs. 5,775/-per cottah. It clear from the judgment delivered by the learned L.A. Judge that he took average valuation of the seven deeds which were produced before him by both sides and assessed valuation of the danga, bastu and garden class of land @ Rs. 11,554/- per cottah for such class of land. The learned Judge observed that the valuation of doba class of land may be assessed at half of the rate of danga class of land and accordingly assessed value of doba class of land @ Rs. 5,775/- per cottah. Such valuation on the basis of average of seven deeds produced by the parties before the learned Judge and valuation of doba land at half rate of danga class of land is the main target of attack by the appellant in this appeal.
10. We are of the view that the learned L.A. Judge was in error by calculating valuation of the lands at average rate of the valuation of seven deeds produced before him. Learned Judge did not consider that the acquired lands were of Sheet No. 7 of the Mouza map of Sukhchar Mouza within P.S. Kharda whereas the State of West Bengal produced before him deeds whose lands are situated in Sheet Nos. 2, 3 and 4 of mouza map of Sukhchar mouza. Copy of mouza maps of Sheet Nos. 2, 3, 4 and 7 were produced before us the copy of which are also lying in the paper book and we find that plot No. 422 of Sheet No. 2, Plot No. 652 of Sheet No. 3 and Plot Nos. 1007 and 1026 of Sheet No. 4 of the mouza map are far away from the plot Nos. 3119, 3170 and 3261 of Sheet No. 7 of the mouza map. The State of West Bengal produced four deeds before the learned L.A. Judge in respect of plot Nos. 422, 652, 1007 and 1026 which are situated in Sheet Nos. 2, 3 and 4 respectively of the mouza map. The claimant produced deeds in respect of plot Nos. 3119, 3170 and 3261 of Sheet No. 7 of mouza map before the learned Judge. The acquired lands are in plot Nos. 3321, 3340, 3341, 3342, 3343, 3344, 3348 and 3351 of Sheet No. 7 of the mouza map of Sukhchar mouza. The mouza map of Sheet No. 7 of Mouza Sukhchar clearly reveals that the plot Nos. 3119, 3170 and 3261 of Sheet No. 7 of Mouza Sukhchar in respect of which the claimant produced three deeds before the learned L.A. Judge was much nearer to the acquired plots. In assessing value of lands acquired by the L.A. Collector in land acquisition cases the value of lands which are nearer or adjacent to the acquired lands requires to be considered,
11. The learned Judge made error by making average valuation of all the seven deeds which were produced before him. Learned Judge should have rejected the deeds which were produced before him by the State of West Bengal as the said deeds were of the lands situated far away from the acquired land and were situated in.Sheet Nos. 2, 3 and 4 mouza Sukhchar which is far away from Sheet No. 7 where lies the acquired land. He should have considered the deeds produced by the claimant appellant. The claimant appellant is mainly relying upon the deed dated 15.9.1988 which shows value @Rs. 28,607/- per cottah. We are of the view that it is risky to assess valuation over a single deed. There was no oral evidence before the learned Judge to show its position from the acquired land as well as the distance from the acquired land. It is, therefore, wise and advisable to make valuation on the basis of the three deeds produced by the claimant appellant as all the deeds are included in Sheet No. 7. From the mouza map I find that the land of plot No. 3261 of the deed dated 29.12.1988 produced by the claimant is more nearer to the acquired land than the other two deeds dated 15.9.1988 and 1.12.1988 comprising in plot No. 3119 and 3170. The deed dated 29.12.1988 in plot No. 3261 shows valuation @ Rs. 15000/- per cottah. Accordingly if we make average valuation all the three deeds produced by the appellant it will show probable and reasonable value of the land. The valuation of these three deeds are Rs. 28,607 + Rs. 15,000 + Rs. 10,000 = Rs. 53,607 divided by three (Rs. 53,607/3) = Rs. 17,869/- per cottah.
12. The claimants claimed valuation @Rs. 30,000/- per cottah and contended that there were trees, standing crops etc. and this should be considered for assessment of compensation. We find that there was no oral evidence at all before the learned L.A. Judge that trees, crops or other things were attached to earth of acquired lands. As the claimant did not lead any evidence regarding how many trees were standing over acquired land, what were the varieties of such trees and what were the probable value of such trees, what crops were there on the acquired land and what was the valuation of such crops; the claimant cannot claim any enhanced value of lands for trees, crops etc.
13. Learned advocate for the claimant appellant also contended that the learned Judge was in error by assessing valuation of doba class of land at half rate of the danga class of land. The R.S. Record of Rights was published in the year 1956. Thereafter, several years have passed and the doba lands was filled up and converted into bastu or homestead land. In the pattas granted by the State of West Bengal such lands were shown as homestead lands. Therefore, the doba lands as shown in R.S. Record of Rights were no more doba land and lands of plot Nos. 3321, 2241, 3343 and 3344 should fetch same value as of bastu or homestead land.
14. We are of the view that this argument is convincing and acceptable. It is well-known that R.S. Record of Rights was finally published in 1956. Thereafter, several years have passed and the doba lands were filled up by the squatters and were converted into homestead or bastu lands. The Government acquired the land for construction of Subhas Nagar Squatters Colony. We find that in the patta granted by State of West Bengal the plot Nos. 3339, 3343, 3344 were shown as homestead lands. Accordingly, no reliance can be placed on entries of R.S. Record of Rights regarding classification of four acquired plots as doba.
15. The claimant appellant is entitled to valuation of the lands of acquired plot Nos. 3321, 3341, 3343 and 3344 which were shown as doba in the R.S. Record of Rights at the same rate of danga or bastu land. The claimant did not lead evidence to claim enhanced valuation for trees, crops etc. On the other hand, patta granted by the State reveals that doba plots of R.S. Record of Rights has now been converted into bastu or homestead land. We have observed that reasonable value of acquired lands on the basis of value of deeds produced by claimant comes to Rs. 17,869/- per cottah. We are of the view that value of lands are increasing day by day. In this connection we place reliance over decision of a case wherein it was observed by the Patna High Court that judicial notice can and should be taken of the fact of continuous rising of inflation and rising of land value. Therefore, it would meet ends of justice if we assess valuation of entire acquired land at flat rate of Rs. 18,000/- per cottah.
16. Learned advocate Mr. S.P. Roy Chowdhury appearing for the claimant appellant contended that the learned L.A. Judge should have passed the order of appropriation towards interest first and not towards the principal. The law is that while calculating and computing the quantum, the amount paid should be appropriated from the interest first and not from the principal. In support of his contention he placed before us a decision . We find that in the case of Mathunni Mathai v. Hindusthan Organic Chemicals Ltd. and Ors. the Supreme Court observed that ‘The right of the decree-holder to appropriate the amount deposited by the judgment-debtor, either in Court or paid outside, towards interest and other expenses is founded both on fairness and necessity. The Courts and the law have not looked upon favourably where the judgment-debtor does not pay or deposit the decretal amount within the time granted as one cannot be permitted to take advantage of his own default. Therefore, the normal rule that is followed is to allow the deposit or payment if it is in part to be adjusted towards the interest due etc”. Accordingly the amount in excess to be paid by the State of West Bengal in pursuant to the award after reference should be appropriated towards interest first.
17. Mr. Roy Chowdhury for the appellant further contended that solatium is a part of compensation and State is liable to pay interest on solatium, recurring compensation and additional compensation or any form of compensation. In support of his contention he placed before us two decisions . Learned advocate Mr. Soumen Dasgupta, appearing for the respondent State of West Bengal contended that regarding interest on solatium the decision of the Supreme Court is binding on all.
18. We find that the learned L.A. Judge by his impugned order dated 19.2.1998 modified the award made by the L.A. Collector but did not grant interest on solatium The Supreme Court in the cases of Sunder v. Union of India and Nagpur Improvement Trust v. Vasant Rao has held that “What the legislature intended was to make the aggregate amount under Section 23 of the Act to reach the hands of the person as and when the award is passed, at any rate as soon as he is deprived of the possession of his land. Any delay in making payment of the said sum should enable the party to have interest on the said sum until he receives the payment. Splitting up the compensation into different components for the purpose of payment of interest under Section 34 was not in the contemplation of the legislature when that section was framed or enacted”. In paragraph 26 of the judgment in the case of Sunder (supra) the Supreme Court quoted the observation made by the Division Bench of the Punjab and Hariyana High Court in State of Haryana v. Kailas hwati wherein it was observed that the interest awardable under Section 28, therefore, would include within its ambit both the market value and the statutory solatium. It would be thus evident that the provisions of Section 28 in terms warrant and authorise the grant of interest on solatium as well. The decision of the Supreme Court makes it clear that the person entitled to the compensation awarded is also entitle to get interest on the aggregate amount including on solatium. In the instant case the claimant appellant is entitled to get interest on the aggregate amount and also on solatium.
19. The question now is whether the matter would be remanded back to the learned L.A. Judge for assessing valuation properly as we find that the learned L.A. Judge made error by assessing valuation on the basis of average valuation of the seven deeds which were produced before him by the both parties. We are of the view that the intention of the legislature in land acquisition cases is that the amount calculated reaches the person concerned at the time of passing of award or of taking over possession of the land. We find that in the instant case the notification under Section 4 of the L.A. Act was published on 12th April, 1989 and the State Government took possession over the acquired lands on 20th September, 1988. It is also clear that the Collector made the award on 31st August, 1992. If we send back the case on remand the claimant would suffer most as the State of West Bengal took possession more than 14 years back. It would be denial of justice and it would cause financial loss to the claimant if the case is send back on remand to the learned L.A. Judge. Therefore, the matter can be disposed of here on the basis of valuation of land calculated by us and there is no ground for sending back the case on remand.
20. What we have discussed so far makes it clear that the learned L.A. Judge passed the judgment and decree not in accordance with law and was in error by making average of total valuation of the seven deeds. Such a judgment and decree which is not in accordance with law cannot stand and accordingly we set aside the judgment and decree passed by the learned L.A. Judge.
21. We find that there are sufficient merit in the appeal and accordingly the appeal is allowed.
As discussed by us earlier the referring claimant do get compensation for the land value of the acquired land at the rate of Rs. 18,000/- per cottah over the entire acquired land less the amount already awarded by the L.A. Collector. The referring claimant do get solatium or statutory allowance (c)30% over the entire value of the land calculated by us less the amount awarded by the L.A. Collector. The referring claimant do get additional compensation @12% over the entire valuation from the date of publication of notification till date of the award less the amount already awarded by the L.A. Collector.
Referring claimant do get interest over the entire compensation @ 9% p.a. from the date of possession i.e. from 20.9.1988 for the first year upto 19.9.1989 and thereafter, @ 15% till the date of payment in full. In view of the decision of the Supreme Court mentioned above the referring claimant do get interest over the whole amount including solatium as provided in Sections 28 and 34 of the L.A. Act. In view of our discussion made above the claimant appellant is entitled to appropriate towards interest first in respect of the amount which the State of West Bengal would deposit before the learned L.A. Judge in terms of the award. The award made by the L.A. Collector stands modified accordingly.
The amount of award or compensation amount shall be deposited in the Court below within six months from this date.
Drawing up of decree is dispensed with.
There will be no order as to costs.
Lower Court record, if received be returned forthwith to the learned L.A. Judge along with copy of this order for information and necessary action.
Urgent xerox certified copy be given to the parties, if applied for, expeditiously.
T. Chatterjee, J.
22. I agree.