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IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

APPELLATE SIDE

Before:

The Hon’ble Justice Hiranmay Bhattacharyya

WPA 21473 of 2025

M/s. Aawas Construction Pvt. Ltd. & Ors.

Versus

Union of India & Ors.

With

WPA 25101 of 2025

Union of India & Ors.

Versus

M/s. Aawas Construction Pvt. Ltd. & Ors.

For the petitioners

(in WPA 21473 of 2025)

And

For the respondents

(in WPA 25101 of 2025)

: Mr. Jaydip Kar, Sr. Adv.

Mr. Ayan Banerjee

Mr. Dhiman Banerjee

Mr. Ajeyo Chowdhury …. advocates

For the petitioners

(in WPA 25101 of 2025)

And

For the respondents

(in WPA 21473 of 2025)

: Mr. Jayanta Kumar Mitra, Sr. Adv.

Ms. Sayani Roy Chowdhury

Mr. Brijendra Pratap Singh

Ms. Biswadeepa Mandal ….advocates

Reserved on : 20.05.2026

Judgment on : 17.08.2026

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Hiranmay Bhattacharyya, J.:-

1. WPA 21473 of 2025 is at the instance of the claimant praying for setting

aside the judgment and order dated July 30, 2025 passed by the Appellate

Authority, Metro Railways, in Acquisition Claim Case no. 19 of 2022 and to

restore the judgment dated 14.03.2022 passed by the Competent Authority

in Acquisition Claim case no. NGA/92/2017. WPA 25101 of 2025 is at the

instance of the Metro Railways challenging the aforesaid order.

2. The claimant nos. 1 to 15 purchased 107.438 decimals of land comprising

R.S. Dag No. 456 and 571 from the erstwhile owners for a valuable

consideration by a registered deed of sale dated 14.12.2011. Claimant nos. 1

to 15 entered into a development agreement with the claimant no. 16 and

17. At the time of erecting boundary wall in the year 2016, the claimants

came to learn for the first time that the aforesaid land is within the Metro

Railway Acquisition Scheme. The claimants thereafter approached the

competent authority for payment of compensation.

3. 101.1441 Decimals of land out of 107.438 decimals of the aforesaid land

was acquired vide notification dated 25.03.2013 under Section 7 of the

Metro Railways (Construction of Works ) Act, 1978. Notification under

Section 10(1) of the said Act dated 13.02.2014 was published in the

Gazettee. The claimants approched the Competent Authority for payment of

compensation giving rise to Acquisition Claim Case no. NGA/92 of 2017

which was allowed on contest in part by a judgment dated 14.03.2022.

4. Challenging the judgment of the competent authority dated 14.03.2022, the

General Manager, Metro Railway, Kolkata preferred an appeal before the

Appellate Authority, Metro Railway being Acquisition Claim Appeal no. 19 of

2022. The said appeal was allowed on contest by the appellate authority by

a judgment dated July 30, 2025 thereby setting aside the judgment of the

Competent Authority dated 14.03.2022 with a direction upon the Metro

Railway to pay compensation to the claim ants at a rate fixed by the

Appellate Authority in the said judgment.

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5. Being aggrieved by the judgment and order dated July 30, 2025 passed by

the Appellate Authority, Metro Railway, Kolkata in Claim Appeal no. 19 of

2022 the claimants and the Metro Railways have approached this Court by

filing separate writ petitions.

6. Mr. Kar, learned Senior Advocate appearing for the claimants contended

that the property of the claimants which formed the subject matter of

acquisition was classified as “sali” at the time of purchase but such property

had the potential of being used as a commercial property. He submitted that

after purchasing the aforesaid property, the claimants applied before the

revenue authorities for conversion of the classification of the said lands from

“sali” which was ultimately allowed by the revenue authorities. He further

contended that the claimant nos. 1 to 15 also entered into a development

agreement with the claimant no. 16 and 17 for the purpose of construction

of a housing complex. He contended that immediately after purchasing the

said property, khajna in respect of the said land was paid at commercial

rate. He further submitted that another land located within 400 meters of

the land of the claimants was also acquired by the Metro Railways under the

same notification. He contended that the award in case of the said land

being NGA 14 of 2014 was passed at the “Bastu Commercial” rate. He

contended that the distance between the land which was the subject matter

in NGA 14 of 2014 and the land of the claimants which has been acquired is

around 200 meters and the decision in NGA 14 of 2014 was relied upon by

the claimants before the competent authority and the competent authority

upon placing reliance on the said exemplar correctly determined the

compensation at the commercial rate. He further contended that the

Appellate Authority even after arriving at a factual finding that the acquired

land of the claimants is situated near Metro Railway Station and had the

potentiality of being converted into a Bastu land fai led to apply the

commercial rate.

7. Mr. Kar further contended that the appellate authority mechanically applied

the rate of Bastu land as communicated by the Collector vide letter dated

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29.09.2016 being Exhibit E. He further contended that the Appellate

Authority even after noticing the principles laid down by the Hon’ble

Supreme Court in the case of Sabhia Mohammed Yusuf Abdul Hamid

Mulla v. Land Acquisition Officer, reported at AIR 2012 SC 270 9

overlooked four factors namely existing geographical situation of the land,

use of land in the contemporary scenario, existing advantages like its

closeness to the developed area and the market value of the acquired land in

the near locality and/or vicinity while computing the compensation. Mr. Kar

contended that the Competent Authority was under a statutory obligation to

apply the market value as specified in the Indian Stamp Act for registration

of sale deeds in the area where the land is situated. He further contended

that average sale price for similar types of land in the nearest vicinity

including the consented amount of compensation, whichever is higher,

ought to have been taken into consideration for the purpose of ascertaining

the market value. He further contended that it was incumbent upon the

Competent Authority as well as the Appellate Authority to apply the highest

exemplar between the Collector’s information vide letter dated 29.09.2016

and the award passed in NGA 14/2014. He further contended that since the

award passed in NGA 14/2014 was the highest exe mplar and the said

amount has been paid by the Metro Railways, such value ought to have

been taken to be the market value.

8. Mr. Kar further contended that the Collector’s information as contained in

the letter dated 29.09.2016 which was marked as Exhibit D in NGA

14/2014 was rejected and the award in NGA 14/2014 was passed after

taking into consideration a letter dated 27.04.2017 of the Deputy Inspector

General of Registration being Exhibit G in the said case. Mr. Kar further

contended that the land in NGA 14/2014 as well as the land of the

claimants has the same potential value as both were capable of being used

as commercial housing complex. He, thus, contended that the appellate

authority failed to appreciate such fact while passing the impugned

judgment.

Page 5 of 22

9. In support of his contention that the expression “market value” would

include potential value, Mr. Kar placed reliance upon the decisions in the

case of Mehrawal Khewaji Trust Registered (Faridkot) v. State of

Punjab and others, reported in (2012) 5 SCC 432; Himmat Singh v.

State of MP, reported in (2013) 16 SCC 392, Chandramallika Suppliers

Private Limited v. State of West Bengal, reported in AIR 2016 Cal 357,

Atma Singh (Dead) v. State of Haryana, reported in (2008) 2 SCC 568, V.

P Ram Reddy v. LAO Hyde rabad Urban Development Authority, reported

in (1995) 2 SCC 305, and Manohar v. State of Maharashtra and Other ,

reported in 2025 SCC Online SC 1519.

10. Mr. Mitra, learned Senior Counsel appearing for the Metro Railways

seriously disputed the contentions of Mr. Kar. He contended that on the

date of publication of the notification under Section 7 i.e., March 25, 2013,

the land in question was a “sali” land. He, thus, contended that in view of

the provisions laid down under Section 13 of the Metro Railway Act the

market value for determination of compensation by the Competent Authority

would be that of “Sali” land in Balia Mouza as on March 25, 2013. He

further contended that in order to determine the compensation , the

Competent Authority/ Appellate Authority under the Metro Railways Act are

obliged to take recourse to the provisions of Section 26, 27,28 and 29 of the

Right to Fair Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013.

11. He further contended that Section 26 of the 2013 Act provided that the

“market value” of the land is to be ascertained by the Collector and the

District Magistrate 24 Parganas (S) has been assigned the duty under

Section 26 of the 2013 Act to ascertain the market value of the property. He

further contended that pursuant to a request made by Chief Engineer by a

letter dated August 12, 2016 requesting the District Magistrate to furnish

the market rates of the land in various Mouzas in terms of 26 of 2013 Act,

the District Magistrate by a letter dated September 29, 2016 furnished the

marker value of different clauses of land in Balia Mouza. He further

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contended that the market value as determined by the District Magistrate in

respect of several classes of land including Sali land in Balia Mouza but

such determination of the market value had never been challenged by the

complainants before any forum as per the provisions of the relevant statute

or by way of a writ petition. He further contended that once the market

value of the land has been determined by the Collector in terms of Section

26 of 2013 Act the Competent Authority or the Appellate Authority under

Metro Railways Act is obliged to accept the said market value of land as the

market value on the date of the publication of the notification under Section

7. He further contended tha t the Competent Authority exceeded its

jurisdiction by placing reliance upon the market value determined by a

private valuer engaged by the claimants. He further contended that the

purported report of a privately engaged surveyor could not have been

accepted by the Competent Authority for the purpose of determination of the

compensation amount.

12. Mr. Mitra further contended that an exemplar was available of a similar

property which was the subject matter of NGA 33 of 2014. He further

contended that in view of the provisions of Section 6(1)(b) of the 2013 Act

the market value ascertained in NGA 33 of 2014 ought to have been taken

as the appropriate exemplar by the Competent Authority in respect of the

land in question. He further contended that both the land in NGA 33 of

2014 and the land of the claimants which is the subject matter of NGA 92 of

2017 are similarly situated, classification of the lands was similar that is

Sali, acquired by the same notification and having similar potentiality.

13. Mr. Mitra contended that the Competent Authority committed a

jurisdictional error in ignoring the market value provided by the District

Magistrate vide letter dated September 29, 2016 and by relying upon the

valuation of the land made by a private valuer appointed by the claimants.

He further contended that the Competent Authority failed to appreciate that

since the statute directs determination of market value of the property as on

the date of publication of the notification and on such date the property was

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admittedly a Sali land, the claimants were entitled to be compensated at the

market value of a Sali land but not at commercial rate.

14. Mr. Mitra sought to distinguish the decisions relied upon by Mr. Kar by

contending that the said decisions were delivered considering the provisions

of the Land Acquisition Act 1894 and not the 2013 Act. He further

contended that in all the aforesaid decisions the matter travelled to the

Hon’ble Supreme Court in appeal from the order of reference. He fur ther

contended that the 2013 Act have specifically provided the parameters

required to be considered by the Collector in determination of the award and

the concept of potential value of land has been incorporated in the 2013 Act.

He further contended that since on the date of notification the land was

admittedly the Sali land, the Competent Authority or the Appellate Authority

ought to have determined the compensation by taking the market value of

the land as a Sali land. Mr. Mitra contended that the Appellate Authority

after arriving at a categorical finding that the land of the claimants was not

a commercial land and the nature of the land was Sali on the dates of

notification under Section 7 and 10 of the Metro Railways Act erred in

holding that the land had the potentiality of being developed into a Bastu

property. Mr. Mitra concluded by submitting that the compensation payable

to the claimants should be determined on the basis of the market value as

assessed by the District Magistrate 24 Parganas (S) vide letter dated July 29,

2016 for Sali land.

15. In reply, Mr. Kar, learned Senior advocate for the claimants submitted that

the classification of land as on the date of notification is of no consequence.

He contended that the potential value is to be looked i nto and it is

immaterial as to what was the classification of the land as on the date of

notification. In support of such contention he placed reliance upon a

decision of the Hon’ble Supreme Court in Manohar Vs. State of

Maharastra and ors . reported at 2025 SCC Online SC 1519 . Mr. Kar

contended that the Appellate Authority failed to consider that Sali land in

the said locality was being allowed to be converted to Bastu and used for

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commercial purpose by the Government as would be evident from the award

passed in NGA 14 of 2014 and the Appellate Authority ought to have

considered that the lands of the claimants also had the potentiality of being

used for commercial purpose and the compensation for the lands of the

claimants should have been determined at commercial rate. Mr. Kar further

contended that the appellate authority after arriving at a finding that the

land in NGA 33/2014 was land locked ought to have held that the land in

NGA 33 of 2014 is not similar as the land of the claimants had a much

higher potential value considering its locational and other advantages.

16. Heard the learned advocate for the parties and perused the materials placed.

17. A Gazettee notification dated 07.02.2011 under Section 21 of the Metro

Railways (Construction of Works) Act 1978 was published prohibiting any

construction within the width of 50 meters from the proposed Metro

alignment. During the validity period of the notification under Section 21,

the claimant nos. 1 to 15 purchased 107.438 decimals of land in R.S. Dag

Nos. 457 and 517 by a registered deed of conveyance dated 14.12.2011.

Thereafter, the claimants applied for mutation on 10.01.2012. A company

under the name and style “Dewakar Developers Pvt. Ltd.” was incorporated

on 11.01.2012 under the Companies Act, 1956. The development agreement

was entered into between the claimant nos. 1 to 15 and the claimant nos. 16

and 17. On 25.03.2013 the Metro Railways published Gazette Notification

under Section 7 of the 1978 Act expressing their intention to acquire the

land in question.

18. An argument was advanced by the learned Senior Counsel for the Metro

Railways that the claimants could not have purchased the property in

question after issuance of the notification under Section 21 of the 1978 Act.

It was further contended that within one year from the issuance of the

notification under Section 21 the claimant purchased the land in question

vide registered deeds i.e., during the period the prohibition under Section 21

of the 1978 Act was in force.

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19. In reply the learned Senior Counsel for the claimants would contend that

the prohibition under Section 21 was in respect of construction of buildings

and excavation but not purchase of the property in question.

20. Section 20 and 21 of the 1978 Act falls under Chapter IV which deals with

construction of works. Section 20 of the 1978 Act casts an obligation upon

any person who proposes to develop any land or building along or on the

metro alignment to obtain any approval or consent from the authorities

before commencing the development work. Section 21 empowers the Central

Government to prohibit or regulate the construction of buildings and

excavation in order to facilitate the construction of any metro railway or for

ensuring the safety of any metro railway. Section 22 of the 1978 Act

provides for payment of an amount to be determined by the Competent

Authority if in consequence of any direction contained in notification under

Section 21(1) any person sustains any loss or damage.

21. Upon a harmonious reading of the Sections falling under Chapter IV, this

Court is of the considered view that the provisions under Section 21 only

prohibits or regulates construction of building or excavation and not

purchase of any land.

22. The provisions relating to acquisition have been specifically laid down under

Chapter III. To the mind of this Court, purchase of any property during the

validity period of the notification issued under Section 21 of the 1978 Act

cannot in any manner affect the right of a claimant to receive compensation

for acquisition of the property purchased during the validity period of the

notification issued under Section 21 of the 1978 Act.

23. The claimants chose not to file any objection within the time limit as

specified under Section 9 of the said Act.

24. The notification under Section 10 of the 1978 Act dated 13.02.2014 was

issued. With the issuance of the said notification under Section 10 of the

1978 Act, the land in question stood vested absolutely to the Central

Government free from all encumbrances. Upon vesting of the said land the

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Central Government became liable to pay compensation at the market value

from the date of publication of the notice under Section 7 i.e., 25.03.2013.

25. After the land in question stood vested to the Central Government the

claimants applied for conversion of the land from Sali to housing complex on

17.03.2015. After the conversion of the classification of the land from Sali to

housing complex the claimants filed the compensation case before the

Competent Authority on 18.05.2017.

26. Before the Competent Authority the claimants produced the certified copy of

the judgment passed by the Competent Authority in acquisition claim case

no. NGA 14 of 2014. The claimants also produced a valuation report

prepared by one Prabhas Chandra Saha which was marked as Exhibit 21.

The Competent Authority after considering the materials placed on record

observed that the claimants purchased the case land with an intention to

use the same commercially and they are entitled to get the value of the case

land at the commercial rate. The Competent Authority after applying the

proposition of law laid down by the Hon’ble Supreme Court wherein it was

held that compensation has to be awarded at the rate awarded to adjoining

land owners whose lands has been acquired in the said notification observed

that the claimants should be awarded the same value as has been awarded

to the claimant of acquisition claim case no. NGA 14 of 2014.

27. The Competent Authority placed reliance upon the evaluation report

prepared by the engineer appointed by the claimants being Exhibit 21. The

Competent Authority observed that such valuation appears to be quite

reasonable and the claimant should be awarded compensation at the rate

mentioned in the said exhibit.

28. In the light of the aforesaid observations the Competent Authority allowed

the Acquisition Claim Case no. NGA 92 of 2017 on contest in part. The

Competent Authority held that claimant nos. 1 to 15 shall get an award of

compensation to the tune of Rs. 57,10,12,312/- (Rupees Fifty seven crore

ten lakh twelve thousand three hundred twelve) only and severally they are

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entitled to get an amount as per their respective shares in the case land and

such amount was directed to be paid by Metro Railway within the time limit

indicated in the said order.

29. Challenging the order of the Competent Authority, the Metro Railways

preferred an appeal before the Appellate Authority being Claim Appeal no.

19 of 2022 which was allowed by a judgment and order dated July 30, 2025

passed by the Appellate Authority. By the said order the appeal was allowed

on contest thereby setting aside the judgment and order passed by the

Competent Authority. The Metro Railway was directed to pay compensation

of Rs. 15,90,97,903/- (Rupees Fifteen crore ninety lakh ninety seven

thousand nine hundred three) to the claimants jointly.

30. The Appellate Authority held that the land in question is not a commercial

land. The nature of the land was “Sali” as on the date of notification under

Section 7 and 10 of the 1978 Act dated 25.03.2013 and 13.02.2014

respectively. That the land in question is Sali land but had the potentiality

of being developed into Bastu property considering its geographical position.

The appellate authority accepted the rate for Bastu property in Balia Mouza

on the date of notification under Section 7 i.e., 25.03.2013 as stated in the

letter of the District Magistrate 24 Parganas (S) at Alipore dated 29.09.2016.

The Appellate Authority accepted the rate of Rs. 7,95,375/- (Rupees seven

lakh ninety five thousand three hundred seventy five) per Kottah and

accordingly directed that the compensation amount to be paid by the Metro

Railways to the claimants.

31. The said order of the Appellate Authority is under challenge at the instance

of the claimants as well as Metro Railways. It is the contention of the

claimants that they are entitled to compensation at the commercial rate in

terms of the exemplar relied upon by them i.e., award in NGA 14 of 2014.

On the other hand it is the contention of the Metro Railways that the

compensation amount ought to have been determined by applying rate for

“Sali” land in Balia Mouza as on the date of notification issued under

Section 7.

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32. Chapter III of the 1978 Act deals with Acquisition. Section 6 vests power to

acquire land. Section 7 speaks of publication of notification for acquisition.

Section 9 provides for hearing of objections of any person interested in the

land. Section 10 deals with declaration of acquisition.

33. Sub-section (2) of Section 10 states that on publication of the declaration

under subsection (1), the land, building, street, road or passage, or right of

user or right in the nature of easement, therein shall vest absolutely in the

Central Government free from all encumbrances.

34. Section 13 also falls under Chapter III and it provides the machinery for

determination of amount payable as compensation. Sub -section (4) of

Section 13 lays down the factors which are to be taken into consideration by

the Competent Authority or the Appellate Authority while determining the

amount under sub-section (1) or subsection (3). Sub-section (3) provides a

remedy of appeal if the amount determined by the Competent Authority is

not acceptable to either of the parties.

35. However, in view of the provisions of Section 105(3) of the 2013 Act, the

provisions of the 2013 Act relating to determination of compensation in

accordance with the First Schedule shall apply to the cases of land

acquisition under the 1978 Act.

36. Section 26 of the 2013 Act lays down the provisions for determination of

market value of land by Collector. Section 27 speaks of determination of

amount of compensation Section 28 speaks of the parameters to be

considered by Collector in determination of award. Section 29 states about

the determination of value of things attached to land or building and Section

30 provides for award of solatium.

37. The dispute between the parties revolves around the determination of

market value of the acquired land and for such reason the provision of

Section 26 of the 2013 Act is extracted hereinafter.

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“26. Determination of market value of land by Col lector- (1) The

Collector shall adopt the following criteria in assessing and determining

the market value of the land, namely:—

(a) the market value, if any, specified in the Indian Stamp Act, 1899 (2

of 1899) for the registration of sale deeds or agreements to sell, as the

case may be, in the area, where the land is situated; or

(b) the average sale price for similar type of land situated in the nearest

village or nearest vicinity area; or

(c) consented amount of compensation as agreed upon under sub -

section (2) of section 2 in case of acquisition of lands for private

companies or for public private partnership projects,

whichever is higher:

Provided that the date for determination of market value shall be the

date on which the notification has been issued under section 11.

Explanation 1.—The average sale price referred to in clause (b) shall be

determined taking into account the sale deeds or the agreements to sell

registered for similar type of area in the near village or near vicinity

area during immediately preceding three years of the year in which

such acquisition of land is proposed to be made.

Explanation 2.—For determining the average sale price referred to in

Explanation 1, one-half of the total number of sale deeds or the

agreements to sell in which the highest sale price has been mentioned

shall be taken into account.

Explanation 3.—While determining the market value under this section

and the average sale price referred to in Explanation 1 or Explanation

2, any price paid as compensation for land acquired under the

provisions of this Act on an earlier occasion in the district shall not be

taken into consideration.

Explanation 4.—While determining the market value under this section

and the average sale price referred to in Explanation 1 or Explanation

2, any price paid, which in the opinion of the Collector is not indicative

of actual prevailing market value may be discounted for the purposes of

calculating market value.

(2) The market value calculated as per sub -section (1) shall be

multiplied by a factor to be specified in the First Schedule.

(3) Where the market value under sub-section (1) or sub-section (2)

cannot be determined for the reason that—

(a) the land is situated in such area where the transactions in land are

restricted by or under any other law for the time being in force in that

area; or

Page 14 of 22

(b) the registered sale deeds or agreements to sell as mentioned in

clause (a) of sub-section (1) for similar land are not available for the

immediately preceding three years; or

(c) the market value has not been specified under the Indian Stamp Act,

1899 (2 of 1899) by the appropriate authority,

the State Government concerned shall specify the floor price or

minimum price per unit area of the said land based on the price

calculated in the manner specified in sub-section (1) in respect of similar

types of land situated in the immediate adjoining areas:

Provided that in a case where the Requiring Body offers its shares to

the owners of the lands (whose lands have been acquired) as a part

compensation, for acquisition of land, such shares in no case shall

exceed twenty-five per cent, of the value so calculated under sub-

section (1) or sub-section (2) or sub-section (3) as the case may be:

Provided further that the Requiring Body shall in no case compel any

owner of the land (whose land has been acquired) to take its shares,

the value of which is deductible in the value of the land calculated

under sub-section (1):

Provided also that the Collector shall, before initiation of any land

acquisition proceedings in any area, take all necessary steps to revise

and update the market value of the land on the basis of the prevalent

market rate in that area:

Provided also that the appropriate Government shall ensure that the

market value determined for acquisition of any land or property of an

educational institution established and administered by a religious or

linguistic minority shall be such as would not restrict or abrogate the

right to establish and administer educational institutions of their

choice.”

38. Mr. Kar would strenuously contend that the highest of the 3 values amongst

clauses (a),(b) and (c) of sub-section (1) of Section 26 of the 2013 Act ought

to be taken as the Market value of the acquired land for determination of

compensation.

39. In the case on hand, the market value specified in the Indian Stamp Act,

1899 for registration of sale deeds or agreements to sell in the area i.e.,

Balia Mouja i.e., the letter of the District Magistrate dated 29.09.2016 was

marked as Exhibit E.

Page 15 of 22

40. No materials have been produced by either of the parties with regard to

average sale price for similar land situated in the nearest village or nearest

vicinity area.

41. The award passed in NGA 14/2014, according to the claimants, is the

consented amount of compensation as per Sect ion 26(1)(c) as the said

amount has been duly paid. Since the market value of the land as per the

said Award is the highest, such value, according to Mr. Kar should have

been accepted by the Appellate Authority.

42. The Competent Authority while determining the compensation amount

payable to the claimants herein accepted the valuation of the plots in

question made by the Engineer privately appointed by the claimants as

indicated in the Evaluation Report being Exhibit 21. To the mind of this

Court, the Appellate Authority was right in not relying upon the Evaluation

Report of a private professional appointed by the claimants.

43. Before the Appellate Authority, Metro Railways produced the Award passed

in NGA 33 of 2014 and according to the said Authority, the acquired plot of

land of the claimants in more or less identical with the acquired land which

was the subject matter of NGA 33 of 2014.

44. The Appellate Authority in paragraph 11.11 of the impugned judgment took

note of the dissimilarities between the case land of NGA 14 of 2014 (Exhibit

22) and the case land of the claimants in NGA 92 of 2017. For better

appreciation paragraph 11.11 is extracted hereinafter.

“11.11: The dissimilarities between the case land of NGA 14/2014

(Ext-22) and this present case (NGA 92/2017) is that (a) The case land

of NGA 14/2014 is situated at more prominent place compared to case

land of NGA 92/2017. The case land of NGA 14/2014 is situated just

in front of the Kavi Subhash Metro Station, whereas the land of NGA

92/2017 is situated beside Kavi Subhash Metro station at the distance

of 300-400 meter by the side of railway alignment. There is likelihood of

sound pollution to the residents due to frequent running of metro trains.

(b) The frontage road of NGA 14/2014 is about 25 ft. width, whereas

the frontage road of NGA/92/2017 is 10-12 ft. (c) There is potentiality

of land of NGA 14/2014 is that any mall or shopping complex can be

Page 16 of 22

constructed there but land of NGA 92/2017 has no such scope as it is

situated beside the railway alignment and having narrow approach

road. (d) The case land of NGA 14/2014 was purchased by the raiyat

in the year 1993, much before the publication of notice under section 21

of the 1978 Act, while the land of NGA 92/2017 was purchased on

14.12.2011, after publication of notice under section 21 of the 1978 Act.

The intention of the claimants of the NGA 14/2014 was not to grab

more compensation from the Government, whereas the acts of the

claimants of NGA 92/2017 attracts doubts to their fairness. (e) The case

land of the NGA 14/2014 was already converted to commercial before

the publication of notification under section 7 and 10 of the 1978 Act,

whereas the Claimants of NGA 92/2017 applied for conversion after

notification under section 7 and 10 of the 1978 Act and filed the claim

case only after it being converted to housing complex in the year 2015

with mala fide intention to grab more and more compensation. (f) The

case land of NGA 14/2017 is a smaller plot of measuring about

11cottah, 4 chittak 25 sq,ft, whereas the case land of present case

(NGA 92/2017) is larger plot measuring about 107.438 decimal. So,

market value of smaller plot cannot be compared with larger plot. (g)

The case land of NGA 14/2014 is situated in the Garagacha Mouza,

whereas the case land of NGA 92/2017 is situated in Balia Mouza.

Though the distance between the two is hardly 400 meter, but the

natural justice demands that the case land of NGA 92/2017 (present

case) shall be compared with similarly situated land of Balia Mouza,

instead of Garagacha mouza. (h) The shape of case land of NGA

14/2017 is rectangular, whereas the shape of present case (NGA

92/2017) is neither square or rectangular but like a knife shape, which

is one of minus factor. (I) The case land of NGA 14/2014 was converted

to bastu commercial, whereas the case land of NGA 92/2017 was

converted to housing project i.e residential housing project.”

45. The Appellate Authority pointed out that the case land in NGA 14 of 2014

was converted to commercial before publication of notification s under

Sections 7 and 10 whereas the case land in NGA 92 of 2017 was converted

to housing complex after publication of Notification under Section 7 and 10.

46. The Appellate Authority noted that the land in NGA 92 of 2017 was

converted from Sali to housing project/bastu project as in NGA 14/2014. In

the light of the aforesaid findings, the Appellate Authority held that the land

in question is not a commercial land.

47. It is the case of the claimants that they intended to construct a housing

complex on the plot in question and not a commercial complex. Thus, the

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potentiality of the land in question from the point of view of the claimant is a

housing complex and not a commercial complex. Valuation of a housing

complex cannot be said to be the same as a commercial complex. This Court

is, therefore, of the considered view that the Appellate Authority was right in

holding that the land in question is not a commercial land.

48. After going through the Award dated 09.08.2017 passed by the Competent

Authority in NGA 14/2014, this Court finds that the learned lawyer for

Metro Railways in that case admitted that the land in question is bastu

commercial and the only objection of the Metro Railways was that solatium

under the 2013 Act cannot be considered as the land was acquire d for a

national project. Thus, the dispute that fell for consideration in NGA

14/2014 was not whether the land acquired was commercial or not.

49. However, in the case on hand, it is the contention of Metro Railways that

since the land acquired in NGA 92/201 07 was Sali at the time of

publications of Notification under Section 7 and 10, the compensation

should be determined for Sali land.

50. At this stage it would not be out of place to take note that in NGA 14/2014,

the letter dated 27.04.2017 of the Deputy Inspector General of Registrar HQ

being Exhibit G was relied upon disregarding the letter of the District

Magistrate dated 29.09.2016 which was also exhibited in NGA 14/2014 as

Exhibit D.

51. The subject matter of land in NGA 14/2014 was RS and LR Dag no. 10

under mouja Garagacha. It appears from the award of the Competent

Authority in NGA 14/2014 that the total commercial value of land i.e., 4.73

decimals appertaining to RS Plot no. 9 was determined in Exhibit G. The

competent authority after noticing that the R.S. Plot No. 10 is situated

adjacent to RS Plot No. 9 of the same mouja and land situated side by side

under the same mouja should be treated in the same manner i n respect of

the market value, the valuation of 1 decimals of land of R.S. Dag no. 9 as

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stated in Exhibit G was accepted for determination of Market value of R.S.

Plot no. 10.

52. Thus, it appears that since the valuation of an adjacent plot of the same

mouja was available vide Exhibit G, such exhibited document was relied

upon. To the mind of this Court, the valuation of different categories of land

of various moujas including Balia and Garagacha as mentioned in the letter

of D.M. dated 29.09.2016 was not rejected by the Competent Authority.

53. The Appellate Authority in paragraph 11.13 of the impugned judgment

noted the similarity between the property in NGA 33/2014 and the property

of the claimants in NGA 92 of 2017. Paragraph 11.13 is extracted

hereinafter.

“11.13: Article 14 of the Constitution of India mandates that the equal

should be treated equally and the unequal should be treated differently.

A similar property (NGA 33/2014) to this case land whose nature was

also sali on the date of acquisition and situated just behind the land of

NGA 14/2014 has been compensated by the Ld. Competent Authorit y

at the rate of Rs. 4,58,460/- per decimal at sali rate. The similarities

between the claimants of NGA 33/2014 and this NGA Case 92/2017

are that (a) the land of both the case acquired by central government by

same notification dated 13.02.2014. (b) The nature of both the acquired

land was sali on the date of acquisition i.e 13.02.2014 (c) The claimants

of both the case applied for conversion of the land from sali to

commercial after acquisition le after ceasing to be owner of the land. (d)

The claimants of both the case entered into development agreement to

construct residential housing complex. (e) The case land of both NGA

33/2014 and the present case (NGA 92/2017) are larger in size i.e

59.029 decimal and 107.438 decimal respectively. (f) The claimants of

both the cases intended to develop the land to housing project and they

produced valuer's report and chartered accountant report to get

enhanced compensation. Both the valuer and the chartered accountant

were appointed and paid by the claimants.”

54. The Appellate Authority noted that in NGA 33/2014, compensation was

determined by relying upon the rate furnished by the D.M. by letter dated

29.09.2016 and the rate of Sali land of Gargacha mouja was taken to be the

market value of the said land.

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55. The Appellate Authority after recording that the claimant in NGA 92/2017

purchased the land in question at a price higher than the rate of Sali land in

Balia mouja observed that though the land was recorded as “Sali” land in

the Record of Rights as on the date of notification under Section 7 and 10

has the potentiality of being developed as a bastu land.

56. The Appellate Authority also noticed that the land in NGA 33/2014 is

situated just in front of Kavi Subhas Metro Station though in land locked

situation and the land of the claimants in NGA 92/2017 is situated beside

Kavi Subhas Metro Station at a distance of approximately 400 meter, but

having road (10-12) feet from three sides and held that the market rate of

both lands cannot be same.

57. In Anjani Molu Dessai v. State of Goa reported at (2010) 13 SCC 710, the

Hon’ble Supreme Court held that where there are several exemplars with

reference to similar lands, usually the highest of the exemplar which is a

bona fide transaction, will be considered. Where, however, there are several

sales of similar lands whose price varies in a narrow bandwidth, the average

thereof can be taken, as representing the market price. But where the values

disclosed in respect of two sales are marked by different, it can only lead to

an inference that they are with reference to dissimilar lands or that the

lower value sale is on account of undervaluation or other price depressing

reasons. Consequently, averaging cannot be resorted to.

58. In Mahrawal Khewaji Trust (supra), the Reference Court determined the

market price of the acquired land by averaging the prices of all the three

same exemplars in place of relying upon the highest exemplar. The Hon’ble

Supreme Court after noticing several decisions, including Anjani Molu Desai

held that it is not desirable to take an average of various sale deeds placed

before the authority/Court for fixing compensation.

59. In Manohar (supra), 12 sale deeds were produced, and the Reference Court

overlooked the highest exemplar sale deed which was relied upon by the

claimant as a bona fide sale transaction. The Hon’ble Supreme Court

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interfered only because the Reference Court without recording any reason

decided to completely overlook/omit the highest sale instance.

60. The aforesaid decisions cannot come to the aid of the claimants as sale

deeds in respect of similar types of land has not been produced before the

Authority in the case on hand. That apart, the aforesaid decisions deal with

matters arising out of orders passed by the Reference Court under Section

18 of the Land Acquisition Act, 1894 and not acquisition s under the

provisions of the 2013 Act.

61. In Atma Singh (Dead) Through Lrs. Vs. State of Haryana reported at

(2008) 2 SCC 568, the Hon’ble Supreme Court held that for ascertaining

the market value of land, the potentiality of the acquired land should also be

taken into consideration. Potentiality means capacity or possibility for

changing or developing into state of actuality. It is well settled that the

market value of a property has to be determined having due regard to its

existing condition with all its existing advantages and its potential

possibility when put in its most advantageous manner.

62. In Himmat Singh (supra) the Hon’ble Supreme Court reiterated the

proposition of law laid down in Atma Singh (supra) that for ascertaining the

market value of the land, the potentiality of the acquired land should also be

taken into consideration.

63. The co-ordinate bench in Chandramallika Suppliers Private Limited

(supra) after noticing the definition “market value” in Section 2(16B) which

was introduced by West Bengal Amendment in the Indian Stamp (West

Bengal Amendment) Act, 1990 held that the statutory definition of market

value means the price which a property would have fetched or would fetch if

sold in open market on the date of execution of an instrument as

determined in such manner and by such authority as may be prescribed by

the rules made under the Indian Stamp Act, 1899 or the consideration

stated in the instrument, whichever is higher.

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64. In P. Ram Reddy (supra), the Hon’ble Supreme Court held that the market

value of the acquired land when to be determined with reference to the date

envisaged under Section 4(1) of the Land Acquisition Act, the same has to be

done not merely with reference to the use to which it was put on such date,

but also on the possibility of it becoming available in the immediate or near

future for letter use i.e., on its potentiality.

65. It is, thus, well settled that the expression “Market Value” in land

acquisition proceeding would include in its definition its potential value.

66. In view of the aforesaid discussion it follows that while determining the

market value, the mode of user of the land as on the date of notification

should not be the only guiding factor but the potentiality of the said land

being available for better use in the immediate or near future should also be

taken into consideration.

67. The Appellate Authority even after drawing an adverse interference against

the claimants in obtaining the order of conversion after the land stood

vested with the Central Government did not determine the Market value of

the acquired land in question going only by its classification as “sali” in the

RoR as on the date of notification but took into consideration the

potentiality of the land being developed into bastu property considering its

geographical location.

68. The Appellate Authority took into consideration the materials placed before

it including the Award Passed in NGA 33/2014 and NGA 14/2014 as well as

the letter of the District Magistrate, dated 29.09.2016 wherein the market

value of different classes of land in different mouja including Balia and

Gargacha were stated. Detailed reasons have been assigned in the impugned

judgment for not accepting the award passed in NGA 14/2014 as the basis

for determination of the market value. Reasons for adopting a different rate

for determination of the market value than that arrived at in NGA 33/2014

has been recorded in details. The potentiality of the acquired land has also

been taken into consideration by the Appellate Authority while determining

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the market value. The parameters laid down by the Hon’ble Supreme Court

for determination of market value has been correctly applied by the

Appellate Authority. The reasons assigned by the Appellate Authority for not

accepting the report of the Engineer privately appointed by the claimant i.e.,

Exhibit 21 which forms the basis of the award of the competent authority

are also based on sound legal principles.

69. For all the reasons as aforesaid this Court holds that there is no infirmity in

the decision making process warranting interference in exercise of the

powers of Judicial Review under Article 226 of the Constitution of India.

70. Accordingly, the writ petitions stand dismissed. There shall be, however no

order as to costs.

71. Urgent photostat certified copies, if applied for, be supplied to the parties

upon compliance of all formalities.

(HIRANMAY BHATTACHARYYA, J.)