JUDGMENT
Ajoy Nath Ray, J.
1. We dispose of by this common judgment and order three appeals from a common judgment and order of the learned Land Acquisition Judge, by which he disposed of three references from the awards of the Collector.
2. The acquisition in these cases did not take place under Act I of 1894 but under the West Bengal Act II of 1948 which is called the West Bengal (Requisition and Acquisition) Act, 1948.
3. Hereafter we shall refer to these Acts simply as Act I and Act II.
4. The number of referring claims is quite large and is above 20. They are in three sets. The land was acquired under Act II in May, 1995. The area is upwards of three bighas. One bigha is 20 cottahs and 1 cottah is 720 sq. ft. The land was a part of a 10 bigha tract situated at 156 A, Manicktala Main Road, owned previously by a single common ancestor, namely. Kali Pada Barik, since deceased.
5. The Collector made this award sometime in the year 1997 and thereafter the Land Acquisition Judge was approached on reference by the Bariks.
6. The Collector’s award was on the basis of about 50,000/- rupees compensation per cottah, but the Land Acquisition Judge, on the first hearing raised it to nearly Rs. 5 lakh per cottah.
7. At that stage the opposing parties were the State and the Bariks. The land was acquired for the purpose of the C.E.S.C. which was the requiring authority. Under Act II, the acquisition has to be preceded by a requisition for maintenance of supplies essential tq public life and in this case supply of electricity was the service involved.
8. The C.E.S.C. has since built over the acquired plot of land a 132 K. V. Sub-station called the East Calcutta Sub-station. It uses, roughly speaking, several transformers which step down the load from 132 K.V. downwards for redistribution into different parts of the city located near the Sub-section.
9. Be that as It may, the requiring authority which in this case would have to pay the money ultimately, being dissatisfied with the Land Acquisition Judge’s assessment of compensation, filed a writ application in the High Court at Calcutta complaining against the matter being finalised in their absence. On the 3rd of May, 2000, an order was passed by a Division Bench of our High Court whereby the matter was remitted to the Land Acquisition Judge directing the CESC to be made a party. It was also directed that the parties who had already been examined before the Land Acquisition Judge, would be again presented for cross-examination by the CESC subject to their availability.
10. Thus, the matter was heard on remittance. The Land Acquisition Judge again made assessments and this time after hearing C.E.S.C. the per cottah price went even higher. However, the Judge felt hesitation in raising the price after hearing C.E.S.C. and thus maintained the earlier figure.
11. It is this order from which we are hearing the appeals.
12. On behalf of referring claimants, a valuer gave evidence and also exhibited his written report; one Chandra Nath Barik, on behalf of Bariks, also gave evidence.
13. One Ashok Basak, who had given evidence for the State at the first hearing did not present himself once again for cross-examination by the CESC at the second hearing.
14. The CESC put in five witnesses on their part and they also called their valuer. We have been taken through the evidence at great length by both the sides. The facts appearing therefrom are discussed below.
15. Chandra Nath Barfk admitted that the acquired land was previously used by the washermen of the family for washing clothes and drying those. The CESC has given evidence that at the time of the requisition of the land in 1990, which was five years before the acquisition, the land was low land and filled with water hyacinths. Just outside the boundary of the tract acquired, there was a big pond. The land had to be filled up by copious supply of fly ash which was supplied by the CESC itself from its Titagarh Generation Plant. The thickness of the filling fly ash layer was of the order of 10 metres.
16. The land development was undertaken by the CESC by engagement of certain contractors. Their bills were exhibited. They payments were of the order of Rs. 30 lakh. The Bariks made the case that not all this money was spent on land development but a part of it went for putting up the structures of the CESC as well.
17. A second contractor was engaged by the CESC to drill bores to depths of approximately 20 metres and to ascertain the land stability position. These reports and payments to this contractor are also on record. The sub-station was thereafter put up.
18. It is the almost common ground between the parties, (at least so, now before us), that the acquired plot of land is about 150/200 ft., away from the Manicktala Main Road. It was thus said to be in the third belt away from the main Road.
19. From the pleadings and from the evidence given, it is impossible to conclude that there is any frontage of the acquired land on the Southern side where the Manicktala Main Road runs. Although Ashok Basak for the State might have said something from the box which looks like an admission, these statements might have no real value in the face of clear plans which are before us.
20. So far as the Northern and the Western sides of the acquired plot are concerned, it is admitted that those are land bound.
21. On the West there is other land of the Bariks and on the North there is a housing estate called Purbasa Housing Estate.
22. The case of the CESC was that the plot which was acquired for them was wholly landlocked.
23. This forms a very important factual issue which has a similarly important financial bearing in this case. The issue was, whether on the Eastern side of the acquired plot there was a frontage on a 40 ft. wide public municipal road. The case of the Bariks was that this was so.
24. The CESC, on the other hand, made the case that this was not a municipal road. It was a private road of the Purbasa Housing Estate leading from the Manicktala Main Road, on the South, into the Housing Estate itself. The road runs South to North and belongs to Purbasa.
25. The learned Land Acquisition Judge has disbelieved the case of the CESC on the ground that there was no written agreement to show or prove the case of C.E.S.C.; the CESC’s further case was, that it had entered into an oral agreement with the Purbasa Housing Estate to allow them passage on their private road for the purpose of making their sub-station running and effective.
26. We are quite convinced that the 40ft. wide road on the East is not a municipal road. It has no name. There are no premises numbers attached to this alleged municipal road. In cross-examination from the Bariks’ side it was once even asked and suggested to a C.E.S.C. witness whether CESC had taken permission from the Public Works Department for laying cables under this P.W.D. road. There is no evidence given on the part of the Bariks to show that the road is a public road or connects the Manicktala Main Road to any other municipal road. From the plan it appears that the road goes into the Purbasa Housing Estate and finishes there.
27. Mr. Das, learned counsel appearing for the respondents, sought to show us from certain other plans in the Paper Book, that this road was part of 156-A Manicktala Main Road and was the land of the Bariks. If that is so, then it further proves the case of the CESC that their plot was wholly landlocked. The landlocking of the acquired plot is, therefore, a fact which we take as established, and compensation has to be calculated on that basis.
28. Regarding the basic price of the land per cottah, two pieces of property were brought into evidence by the Bariks. One was another plot at Manicktala Main Road itself and that was sold for Rs. 23 lakh sometime in 1994. The agreement for sale in regard to that property was some four years older than the Conveyance, but that was not exhibited, and the land was five cottahs only, and the land price came to about Rs. 4.60 lakh, per cottah.
29. Mr. Das, appearing for the Bariks, submitted that we should further increase this price since some Rs. 18 lakh out of this aggregate amount was paid earlier than the date of Conveyance, but we are not minded to enter into that exact calculation.
30. Another plot of land was 73 Bagmari Road. This was also a plot of land in the vicinity but there was a talk of the acquisition of this land also. It was requisitioned but ultimately not acquired. The rent compensation during the period of requisition required the fixation of the land value for calculation of the rent compensation as a percentage of it. This part of the land value assessment, is still sub judice before the High Court from a Reference judgment.
31. We take note, therefore, of both the facts that the land price of 73 Bagmari Road as shown by the Bariks, about the material date is above Rs. 5 lakh per cottah, and that it is still sub judice before the High Court, in another proceeding.
32. Mr. Das, learned counsel for the Bariks and Mr. P. K. Roy, learned counsel appearing for the CESC, gave us numerous cases. The authorities speak with one voice that in the matter of assessment of land value, one has to proceed with common sense and of circumspection (See — in the case of Narayan Gajapatiraju, reported at ; and the case of Chimanlal Hargovinddas, reported at ).
33. It is also the law that one should attempt to find the just and reasonable compensation without attempting any mathematical precision in that regard. (See in the case of K. Posayya, reported at ).
34. Also the basic law in the matter of assessing compensation, by reference to dealings in similar land, at arms’ length, in the same vicinity, is clear and well settled. If necessary, reference can be made to the case of T. Adinarayan Setty, reported at .
35. These above cases were given by Mr. Roy.
36. However, in trying to find out a similar land in the vicinity, in the practical field, one is not likely to meet with full success. Exactly similar land in the vicinity simply does not get sold, at the time required, only for the purpose of furnishing appropriate evidence to referring claimants in a land compensation case.
37. One has to make do with what one has got.
38. The difference in the land acquired and the land sold might take on various aspects. One plot of land might be larger, another small; one plot of land might have a large frontage, another land might have none. There might be differences in land development and location. There might also be special features, which have to be taken note of and reasonably considered in the matter of assessing compensation.
39. The lady, therefore, enjoins that when land in the vicinity is brought into evidence, even if the land is dissimilar, the evidence should not ordinarily be outright rejected, unless the dissimilarity is so great, that to consider the evidence would be a distraction, or a source of error, rather than an aid, however, inadequate or small might that aid be.
40. In cases of similar lands, or lands which are not utterly dissimilar, the Court makes adjustments on the land price which is proved by evidence, to arrive at the figure of just compensation. (See in this regard the following cases cited by Mr. Das : the case of Special Land Acquisition Officer, BYDA, Bagalkot, reported at ; the case of Land Acquisition Officer, Revenue Officer, Chittor, reported at and the case of Bhagawathula Samanna, reported at ).
41. We, therefore, have to make adjustments to the land value per cottah from the two pieces of land about which evidence has been given.
42. We find that the learned L.A. Judge has also proceeded on the said two pieces of land but has made very great additions yearwise on the basis that the land value is appreciating every year at the rate of 10%.
43. Although there might be something to say about the percentage of land appreciation being correct, i.e., the land value has appreciated more or less at the rate of 10%, and did so appreciate in the early and middle 90’s, the making of such exact additions and calculations in the present context, in our view, is not quite right.
44. The pieces of land about which evidence has been given are not complete with regard to information, although quite some information has come in regard to those, making it possible for the Court to act upon such information. For example, about the Manicktala Main Road 5 cottahs property, we do not have the agreement for sale which ripened into conveyance.
45. About the sub judice nature of the Bagmari Road property also, we have already made a remark and the papers of these proceedings and other facts relating thereto are not wholly in evidence.
46. Thus, we have to use the land valuation per cottah in regard to those two pieces of property, not on an exact basis, but on the basis which the Supreme Court calls, in our respectful opinion, very correctly, the armchair assessment basis. The case in this regard is that of K. Posayya, reported at .
47. It is important to understand this concept of armchair assessment because this concept is at the root of the basic assessment of the land price per cottah.
48. The phrase is borrowed from the context of interpretation of Wills. The Courts have evolved the principle that when a Will falls for construction by the Court of Chancery, the Judge puts himself in the armchair of the testator. He does not take a too technical, or too hair splitting a view of the matter. He goes by the ordinary construction which appears to be reasonable, and is the apparent meaning of the Will. Unless for reasons the most compelling, such an armchair construction has to be discarded, that is the construction favoured by the Court.
49. The Supreme Court has now opined that similarly in the assessment of land valuation in land acquisition matters, the Judge will place himself in the armchair. Sitting there he will assess the land value from the evidence which has surfaced, which is never perfect and complete, but which is almost always sufficient to act upon, and form the basis of reasonable assessment.
50. When making such an assessment, the Judge will be relaxed, impartial, in grip of all the broad facts of the situation, and he will be guided by reasonableness and ordinary simplicity, rather than a partial approach, or any leaning towards an exact mathematical calculation,
51. The result of this fair and broad assessment will, no doubt, fall to be examined after the Judge has passed the order and decree. If such assessment is made on the above basis, and the Judge has sufficiently been able to bring prove to bear (sic) his expertise and experience in the matter, the result will be equally sweet and sour for both the parties. The acquiring or requiring authority will not be too happy or too sorry to pay the price and the land loser will similarly not be too happy, nor too sorry to get the assessed value in compensation for the land lost.
52. Applying these principles to our case, we find that the broad evidence indicates the land price per cottah, without any adjustment being made for the differential features existing between the said two pieces of property and the land acquired for CESC, to be about Rs. 4/5 lakhs per cottah in or about the year 1994-95.
53. The date to fix the market value under Act I is the date of publication of the preliminary notice under Section 4 giving intimation of possibility of requirement. Under Act II, however, Section 7 provides that the land value is to be determined as on the date of publication of notice referred to in Section 4(1)(a), which is the section of acquisition under the West Bengal Act. This date for our purpose is the 3rd May, 1995.
54. We, therefore, assess the unadjusted land value per cottah on this date as Rs. 4/ 5 lakhs.
55. We now have to deal with the different heads of adjustments. First and foremost which comes to the mind is the difference because of size. The two pieces mentioned above are roughly 5 cottahs each whereas the acquired plot is over 3 bighas, and which is roughly 64 cottahs and odd in all.
56. The cases are practically unanimous in saying this, that where a very large plot of land has been acquired and the comparison is sought to be made with a comparatively small piece of land which has been sold or otherwise dealt with, then and in that event, a percentage of the price is to be knocked off, because of the largeness itself of the acquired land. We might mention In this regard some cases cited by Mr. Roy, those being Chimanlal, reported at ; Siddappa, reported at and Kausalya Devi, reported at .
57. The cases cited by Mr. Das also dealt with this topic of largeness of land. In the above cases large percentages are mentioned, those going up to even 50% in one case. In the Calcutta case of Bibhuti Bhusan Chatterjee cited by Mr. Das, a 10% deduction for largeness was mentioned and the valuer of the CESC itself while giving evidence stated that he would deduct 15% for largeness. The valuer who pame from the side of the Bariks, however, mentioned 25% for deduction on account of largeness, although the resultant value given by Bariks’ valuer was quite large.
58. Mr. Das relied upon one case of the Supreme Court for the proposition that if a large plot of land is owned by numerous owners, then nothing should be deducted for largeness because the share of each owner becomes small. This was the case of Thakarsibhai, reported at . We find from the case that the land with which comparison was made in this case, was itself very large. Also, it is not clear from the case whether the numerous land owners had an undivided share or divided shares amongst themselves. Indeed if 22 persons have 22 marked but contiguous plots, no land value proceeding can seek to club together 22 different plots and thereby reduce the value in the case of each owner, although they would otherwise get a larger value, if the authority acquired the plots separately. Our case is not one of divided property. The 22 or so Bariks were always jointly interested in the acquired land, and have each an undivided share. One also has to bear in mind, that it is not so easy to sell an undivided share in a large plot as it is easy to sell a full share in a small plot.
59. Reading as we do, this case cited by Mr. Das along with many other cases cited in this context, we cannot read in the single case a sweeping proposition of this nature, that even undivided owners many in number, can sweep away the deductions to be made for largeness of land, which principle and factor has been employed again and again in many land acquisition cases.
60. Thus we are of the opinion that the adjustment by way of deduction for largeness is to be made in this case ranging between 15% and 25%.
61. The next important main feature is landlocking. This is a special feature. The case of Chimanlal above AIR 1998 SC 1652, states that the special features are also to be taken into account in value assessment. No doubt if special features were discounted, the first casualty would be common sense and then the armchair approach.
62. What adjustment is to be made in this regard ? The cases here also speak with one voice, that the value to the owner who has lost the land is to be taken into consideration for assessing the value. The above case of the Judicial Committee, which has been followed many times in many cases (Vyricherla, reported at also states this proposition and adds that in assessing such value to the owner, no sentimental factors, specially appreciating the value of the land to the owner, are to be taken into account.
63. The Judge in the armchair, has to consider in this background, the reasonable market price which could be obtained by the owner for losing his land, along with the reasonable market price which the owner could reasonably want for himself as a compensation for what he is about to lose.
64. It seems to us that if the acquired plot of land were to be sold in its landlocked situation and status, it would be very difficult, well-nigh impossible to get a buyer. Where will one find a buyer for 3 bighas of land which has entrance into it only by air space and a helicopter ?
65. If by answering this question we were to say that the value of the land acquired is zero or pitifully low, we would go against the dictates of common sense. Although we are not permitted to make any guesswork, it is easy to see that the CESC quite confidently took this land, because they were confident in ultimately obtaining an agreement with Purbasha Housing Estate for allowing the passage of their vehicles to the public service utility sub-station. Although an ordinary private purchaser might not have been so confident, the democratic pressures which support the public utility no doubt gave them this confidence.
66. The simple conclusion is that the CESC chose something cheap because they were confident they could make do with it. We are aware that it is a mere guesswork; we are also aware that when we do make this guesswork, the acquiring of the plot in a landlocked situation makes a lot of sense in the common sense world.
67. In our assessment, adjustment of 25% or so, which has a little spectrum this way or that, would appropriately takes care of the landlocking factor. Mr. Das was at pains to argue that if the CESC chose some land which was landlocked, then it was their own choice; they have got a large tract of land and they cannot bestow the blame for their choice on the owners by paying them less. We are of the opinion that this argument is not wholly to be accepted; the correct view would be that if a person going to shop finds that all his purposes would be served by a cheap commodity, then he has a right to buy that cheap commodity and pay a small price for it.
68. The third factor is the road frontage factor. The deed of conveyance in regard to the Manicktala Main Road property of 5 cottahs shows that one whole side of it is placed all along a 120 ft. wide main road.
69. Compared to this, the acquired land has no frontage on any public road at all. But since we have already considered the landlocking factor, we cannot duplicate the problem once again under this head. The frontage that the acquired plot has got on the private road of Purbasha Housing Estate, is to be considered as a frontage on an ordinary road for the purpose of the frontage adjustment.
70. This frontage is also very small. It is of the order (sic) area of 20 ft. on the Eastern side of the large rectangular plot opening on to the 40 ft. wide private road of Purbasha Housing Estate.
71. On account of lack of frontage, Mr. Das submitted that no deduction should be made. His case was that a person might wish to stay away from the bustle of the main road and, in the modern days of environmental problems, land away from the main road is sometimes even more valuable than land touching on it. He cited in this regard the case of Smt. L. Kamalamma, reported at and the case of Bhagwathula, reported at .
72. These cases will also be material when we consider the next factor of belting, but that is a less important factor.
73. It will be found in these cases that the Supreme Court pointed out where land is acquired perhaps for a housing estate, after making provisions for passages and roads, the land would be distributed, according to the necessity of applying purchasers, either near the road or away from the road. As such, the division of the whole tract into different parts and reducing the value of those parts which are away from the road is inappropriate.
74. We are not concerned in this case with a whole plot which abuts on the main road and grading valuation of the same plot, even within itself, as the location of the particular part of the plot recedes from the main road; we are here concerned with a plot which is wholly away from the main road.
75. In such a situation, where the plot has no frontage, it is not possible, consistently with accepted ordinary principles of valuation, to accede to Mr. Das’s argument that one make no deduction at all for lack of road frontage.
76. Our assessment in this regard would be, that a purchaser having a frontage along with the entire Southern portion of a plot like the one acquired, would pay about 15% more than a purchaser who has hardly any road frontage at all.
77. Connected with this factor is the belting factor. This was spoken of by the valuer of CESC and he maintained a 5% deduction for it. According to him, the acquired plot was in the 3rd belt away from the road, each belt being about 100-150 ft. wide.
78. We are of the opinion that a deduction of the order of 5% in this regard is not unreasonable.
79. The last adjustment factor is with regard to the type of land; evidence has been led seeking to establish that the acquired land was homestead land. No doubt this was not village land and if the people wanted, they could have had their homes upon it; sanctions for such building would be forthcoming, and no problems about building houses on agricultural land would arise.
80. However, the land was not in such a position or stated as could be built upon there and then by pile dump driving.
81. Costs for filling came to around Rs. 20/30 lakhs. Land stability testing was also paid for by the CESC; the payment being little under Rs. 1 lakh. Fly ash supply came from the CESC owned Titagarh plant. All transport costs etc. and other organisational costs were absorbed in the huge internal organisation of the CESC itself. When making assessment, one has to consider the land development factor for deduction in this case also.
82. In concluding, we act along with our view of a rough and ready common sense approving; we do not wish to add the percentages indicated above. On the other hand, we take broad view of the said percentages, once again, in the aggregate and totality.
83. It appears to us that upon such a broad view, the per cottah price for the acquired land is about half the per cottah price of the two smaller pieces of land.
84. Since the smaller land value is assessed by us already at Rs. 4/5 lakhs, the value per cottah of the acquired land as on 3-5-95, according to us, is Rs. 2.25 lakh per cottah.
85. Having fixed the land price on the date of acquisition we have to make appropriate awards in regard to several other matters which arise out of statutory provisions. The first is rent compensation. This arises because the land was requisitioned nearly five years before the date of acquisition. The date of requisitioning is 16-10-1990. Suitable orders were passed by the State of West Bengal for taking over possession of the land under Section 3 of Act II.
86. The land compensation in this regard is to be granted under Sub-section (3) of Section 7 of the said Act II. The learned Land Acquisition Judge has granted this compensation at the rate of 9% per annum. When we made queries about this percentage from the appellant and the respondents, we found that, nothing much could be said by either side about this percentage. This is, therefore, accepted by us as quite reasonable and proper.
87. About the value of land upon which this percentage is to be applied for five years, however, we have something to say. The percentage cannot be applied on a flat rate for all the five years because it is common ground, that, during this period, the land value appreciated. For fixing the percentage of appreciation we would refer the case of Bagalkot already referred to earlier . Although the time period in that case is different, and also the geographical location, yet we are of the opinion that on a rough and ready armchair estimate basis, a 10% appreciation of land value per year during this period of five years is reasonable and acceptable.
88. We would not enter into any problematic calculations of the actuarial type by depreciating the land value at a compound rate from 1995 either annually or monthly for the purpose of computing the rent compensation. Such mathematical precision in these matters is not appropriate. We would rather impose a flat 10% simple deduction for two and a half years (i.e., at a total deduction of 25%) on the land value of 2.25 lac per cottah, and on that reduced figure allow, 9% per annum compensation for all the five years. What is gained thereby, by the referring claimant, in the earlier orders, would be lost by them for the later years. Thus a balance would be maintained. We accordingly order so, in regard to rent compensation.
89. The next item is solatium, This is payable as per Section 23(2) of Act I. Solatium is paid because of the compulsory nature of the land acquisition, whereby the land owner loses his land for money whether he likes it or not.
90. As far as Act II is concerned the said provision of Act I had been introduced therein also and Section 7(2) of Act II mentions the incorporation of the provision for solatium.
91. The Collector is to make an award of 30% extra money on land value on this count. The market value of land as per Act II is to be computed as on the date of acquisition, i.e. 1995 in our case. The Banks are entitled to get 30% as solatium on this land value as per this provision.
92. Between the acquisition of the land and the Collector’s award, there passed in this case about two years, the award being made on the 27th of March, 1997. Under Section 23(1A) of Act I, 12% of the land value is to be paid from the Section 4 notification to the date of the award of the Collector or the date of the taking of possession of the land whichever is earlier.
93. The said Section 23(1A) is also included in Act II.
94. A Division Bench judgment of our High Court in the case of Anil Kumar Ghosh reported at (2001) 2 Cal HN 215, has ordered that this percentage is to be allowed for the purposes of Act II, from the date of the acquisition to the date of the Collector’s award. In that case the point was not really disputed. Mr. Das also gave us the Supreme Court case of Siddappa, reported at , where possession was taken by the acquiring authority, not under any provision of the Land Acquisition Act, but otherwise. The Supreme Court opined that in such a case, the date of taking of possession becomes immaterial, and the award is to be made for the period up to the date of the Collector’s award.
95. The incorporation of the provisions of Act I into Act II has consistently been made with the introduction of such words as, so far as they may be applicable, and such like.
96. Since any acquisition under Act II is preceded by possession, if the provisions of Section 23(1A) are strictly applied, the provision will never be applicable. This is against ordinary rules of construction. Also such a construction would have this unjust result, that, for the period between acquisition and the making of the Collector’s award, the land loser would be both without money and without interest. In the modern days, this type of construction is never to be allowed by a Court, unless it is faced with some clear words and is compelled to put such a construction. In our opinion the respondents will be entitled to 12% interest on the land value from 3-5-95 to 27-3-97, the value being that on 3-5-95.
97. The last item is the question of interest until payment. We have to put ourselves back to the date when the Collector made his award, i.e. 27-3-97, The problem Is, having made awards under the four heads of land value, rent compensation, solatium and 12% interest under Section 23(1A), that interest, if any, is the Collector to award on this, if we might be permitted to use the word, jumble ? The interest provision is contained in Act I, amongst other places, in Section 28. Section 28 has been Incorporated in Act II. The section roughly provides, that if the Court is of the opinion that the compensation should exceed the amount awarded by the Collector, then the Court should direct interest to be paid at the rate of 9% per annum from the date of possession of the land until the payment of such excess into Court.
98. The proviso to the said Section also states, that if the amount so directed is not paid within one year from the date of taking of possession of the land, the Court may also direct that 15% per annum shall be payable from the expiry of the said period of the year,
99. On the particular word used in this section, i.e. ‘may’, Mr. Das gave the apposite case of Manipur Tea Company, reported at , which states, in no uncertain terms in paragraph 14, that the word ‘may’ in the proviso to Section 28 is to be construed as ‘shall’.
100. An argument was made on the part of the appellant, that possession under Act II being always taken far before even the date of acquisition, if Section 28 is mechanically applied in Act II, it would mean, that the acquiring authority is compelled to pay 15% in each and every case. It would also mean, that even on the date of the Court’s order fixing the amount to be paid into the Court, the acquiring authority has already incurred the liability of paying 6% extra interest. If one reads Sections 28, 34 and 15 of Act I, one would see that these sections contemplate a very great expedition in disposal of land acquisition cases. Under the Act I, if the provisions relating to urgency are left out for the time being, possession can be taken only after the Collector’s award. If, well within a year of that time, the Court’s decision, whether of the Land Acquisition Judge or of the Appellate Court, is reached and finalised, then and in that event, no absurdity arises in applying the provisions of Section 28. In case of_such an expeditious disposal, the clearing authority will know that it has a little more time before the expiry of the year, to pay the money in the Court, and if the date is not kept, the interest rate will jump up to 15%.
101. In the incorporation of the interest provisions also, Act II makes the proviso that these are to be applied as far as practicable. In practice, therefore, period of one year after possession having expired in 1991, and we the appellate Court, being in the midst of passing the judgment in the year 2003, we cannot say that the appellant must pay interest at the rate of 15% per annum on the jumble from 1991 until the payment. Excepting for rent compensation for one year only, every other item of that jumble was determined with reference to later dates.
102. Since Act I contemplates the completion of Court proceedings before the expiry of one year after possession, and since the period of one year is fixed as the period, after which enhanced interest should be attracted, we opine, not with so much logic as, we hope, with common sense, that so far as Act II is concerned, the higher rate of 15% interest should compulsorily become payable unless the appellant pays into Court the amount by which our award is in excess of the Collector’s award within one year from the date of pronouncement of our judgment. But, on the entire jumble, from the date of the Collector’s award 9% interest is no doubt attracted and that has run from 1997 until date, and will go on running until payment. We are given to understand that the amount as awarded by the Collector was duly paid in. We are also given to understand that for the purposes of having the appeal heard expeditiously, without execution being levied by the Land Acquisition First Court, the appellant has already paid a sum of Rs. 66,000,00/- to the respondents. This wilt naturally be given due credit for.
103. We are not minded to order any costs to any party for these legal proceedings.
104. One last issue remains outstanding, that is, the issue of lost land. Mr. Das, appearing for the respondents submitted that some six cottahs and odd of land, on the Northern portion of the acquired plot, became completely cut-off and was thus rendered useless to the respondents. He drew our attention to the evidence of Chandra Nath Barik who said, both in chief and in cross-examination, that this narrow strip on the North became inaccessible. In a similar fashion the valuer of the Bariks also deposed.
105. The Bariks have, however, been unsuccessful in obtaining any award on this count either before the Collector or in their two attempts before the L.A. Judge.
106. Be that as it may, the point was seriously pressed by Mr. Das, because compensation for lost or damaged land is specifically mentioned in Section 23 of Act I and these provisions are also lifted into Act II. In answering this issue Mr. Roy, appearing for the CESC, showed us, that in the pleadings of the parties, the issue of lost or damaged land was never raised. In fact, we are unable to find, even one word or a hint, about this loss in the pleadings; nothing, absolutely nothing, is there. Mr. Roy cited several cases for the proposition that no amount of evidence can be looked into for substantiating a plea not found in the pleadings. He stated that on this ground above the Bariks cannot claim for lost or damaged land when the particulars are not given in the pleadings. He did not admit that any land was really lost to the Bariks.
107. Mr. Das, on the other hand, cited several cases for the more modern proposition, that even if a point is absent in the pleadings, yet, if the history of litigation shows that the parties have had notice of the point, and the controversy, and have had a fair opportunity of waging battle on that issue by leading evidence and advancing arguments, and, have availed themselves of that opportunity, then in that event, the mere gap in the pleadings does not matter so much. The rule requiring pleadings to contain all necessary particulars, was evolved for giving notice to the other side, making him ready for the case he has to answer, and giving him a fair opportunity of preparing and making his defence. If such opportunity is given otherwise, then the mere absence of the matter in the pleadings, becomes a hollow technical point, and does not remain as a point of substantial justice.
108. In the manner we see the legal issue, we feel, that if an important point has not been whispered of the pleadings at all, then it is a question of assessment in each case, whether the parties got a fair opportunity to do battle on that issue, and also whether the parties actually did do battle on that issue, notwithstanding the lacuna, in the pleadings, almost overlooking such a lacuna. We find, that although the CESC cross-examined the referring claimant-witnesses on the issue of lost land, yet they led no evidence at all on this issue. Needless to mention, they did not whisper about this in their pleadings either, and they had no opportunity or any occasion to do so because the pleadings of the land loser was silent on this point. It is, therefore, impossible today to say, whether the CESC did not lead evidence of any sort in this matter on their part, because they thought the case of the claimant is too weak, or because they thought the claimants have no right to make such a case in the absence of pleadings, or because their learned advocates before the L.A. Judge were negligent. The third alternative must be dismissed at once. An advocate is to be imputed with the benefit of having reasonably conducted his client’s case unless the reverse is proved. Also, we cannot, today from the Bench, ask the CESC, why did you not lead evidence on these aspects ? Did you think that the Bariks had not said enough ? Or, did you think that the Bariks’ pleadings relieved you of the task ? Since the question cannot ever asked, nor answered be answered the modern principle relied upon by Mr. Das becomes inapplicable unacceptable. The case of the respondents in this regard, therefore, falls.
109. We accordingly order that the L.R.A. Case Nos. 104, 105 and 106/1997 are disposed of in the manner indicated below, along with the three appeals before us :–
1. The market price of the land acquired is determined to be Rs. 2.25 lac per cottah and the referring claimants in all three cases do get an award of compensation of Rs. 2.25 lac per cottah;
2. In addition thereto, they are entitled to solatium at the rate of 30% on the said land value;
3. They shall also be entitled to additional compensation of 12% per annum on the land value, but not the solatium, from 3-5-95 to 27-3-97 (See : Sunder’s case , which deals with ultimate, i.e. Section 28, interest on solatium but does not pronounce that Section 23(1A) will apply on Section 23(2) also);
4. The respondents/referring claimants shall also be entitled to rent compensation at the rate of 9% per annum from 16-10-90 to 2-5-95 on the land value computed at the rate (per cottah) of Rs. 2.25 lac less 25%. we clarify that the land value is to be reduced by 25% and rent compensation shall run thereon for the said period 16-10-90 to 2-5-95;
5. On all the items 1, 2, 3 and 4, the respondents/referring claimants shall be entitled to interest at the rate of 9% per annum from 27-3-97 until payment or payment into Court; if such payment is not made within 17th February, 2004, the interest shall be thereafter at the rate of 15% per annum: and
6. Due credit shall be given in regard to the wiping of liability as regards the above heads, on account of payments or payments into Court already made by the appellants. 110. The appeals are accordingly disposed of.
111. Stay of operation of this order is asked for by Mr. Das, but the prayer is unhesitatingly turned down.
112. Xerox certified copy of this judgment, if applied for, be supplied to the parties expeditiously.
Hrishikesh Banerji, J.
113. I agree.