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Gauhati High Court · body

1998 DIGILAW 192 (GAU)

L. A. Collector v. Radha Mohan Debnath

1998-06-26

P.C.PHUKAN

body1998
This appeal under section 24 of the Land Acquisition Act, 1894 (hereinafter called the Act) is directed against the judgment and decree dated 8.6.1994 passed by the learned Land Acquisition (LA) Judge, North Tripura at Kailashahar in Misc (LA) Case No.l of 1992. 2. I have heard Mr. RB Sinha, the learned counsel appearing for the appellant Land Acquisition (LA) Collector and Mr. PK Dhar, the learned counsel for the respondent-claimant. 3. The facts leading to this appeal may be stated briefly as follows. The LA Collector issued a notification dated 2.8.86 under section 4 of die Act for acquisition of land measuring 1.49 acres covered by CS Plot Nos 791, 792, 798, 799 and 810 to 812 under Khatian Nos 270 and 271 of Kaulikhura Mouja in Kailashahar belonging to the claimant for construction of an embankment of Manu River, a public purpose. This notification under section 4 of the Act was published in Tripura Gazette on 23.8.86. Thereafter the declaration dated 24.1.1987 under section 6 of the Act was published in the said Gazette on 4.2.1987. 4. The LA Collector found that out of the aforesaid total area of 1.49 acres, only 0.31 acres viti land, 0.11 acres pukur par, 0.90 acres nal land and 0.17 acres pukiir and assessed the valuation of viti land, pukur par and pukur at the rate of Rs. 10,0007- per kani, and nal land at the rate of Rs.7,000/- per kani and awarded all, admissible allowances including 12% solatitum per annum for 19 months from 23.8.86 vide assessment note Ext H dated 26.3.1988. 5. The claimant drew the amount awarded as aforesaid under protest and wrote to the LA Collector on 24.6,1988 that he claimed compensation at the rate of Rs.40,000/- per kani and requested to make a reference to the Land Acquisition (LA) Judge under section 18 of the Act. The reference was made accordingly. 6. In his petition dated 10.5.93 before the LA Judge, the claimant claimed compensation at the rate of Rs.l lakh per kani. He examined no other witness except himself (PW 1). According to him, the acquired land comprised of nal land and garden and is situated near the offices of the District Magistrate (DM) and Superintendent of Police (SP), Police Reserve and poultry market; water supply connection reached upto a place 200 cubits way from the acquired land where there were electric facilities and roads. According to him, the acquired land comprised of nal land and garden and is situated near the offices of the District Magistrate (DM) and Superintendent of Police (SP), Police Reserve and poultry market; water supply connection reached upto a place 200 cubits way from the acquired land where there were electric facilities and roads. He exhibited certified copies of two sale deeds Ext 1 dated 23.3.98 and Ext 2 dated 15.3.89 stating that these sale deed lands were only 250 cubits away from the acquired land. He laso exhibited certified copies of the reference Ext 3 dated 3.3.92 in Misc (LA) Case No.6 of 1992, and the decree Ext 4 passed by the LA Judge in the said case. He awarded compensation at the rate of Rs.30,000/- per kani. PW 1 deposed that the land in the said case and the land in the instant case were covered by the same notification, were of the same nature and quality, and were adjacent lands. 7. In his objection dated 3.8.93 filed in the Court of LA Judge, the LA Collector " has said that only 0.31 acres of the acquired land was viti, that Govt establishments are away from the acquired land, that no modern facilities were available there at the time of acquisition and such facilities became available only after construction of the officers of the DM, SP etc, and that the fact that land was acquired for construction of an embankment shows that the land is nearer to water flow/river having less potential Value, that the sale deeds produced by the claimant are not trust worthy and these sale deed lands were situated away from the acquired land and had no similarity with the potential value of the acquired land, and that the lands in the LA case referred to by the claimant are situated at a very important place by the side of Kailashahar Kumarghat Road far away from the claimant's land acquired in the instant case. 8. An Amin was examined as DW1. He claimed to have visited the claimant's land acquired in the instant case before and after the notification of acquisition. According to him, the acquired land comprised of nal, doba, tank and chara, that there was no Govt office near the acquired land, that the offices of DM and SP. 8. An Amin was examined as DW1. He claimed to have visited the claimant's land acquired in the instant case before and after the notification of acquisition. According to him, the acquired land comprised of nal, doba, tank and chara, that there was no Govt office near the acquired land, that the offices of DM and SP. are ll/2/2 miles away and Police Reserve is 1 mile away from the acquired land, that the lapds of the sale deeds Exts 1 and 2 exhibited by the claimant are 2W3' KM away from the acquired land, and that an appeal was being filed against the -decree passed by the LA Judge in LA Case No.6 of 1992 referred to by the claimant. DW 1 exhibited 7 sale deeds, viz, Ext A dated 26.4.85, Ext B dated 6.11.85, Ext C dated 5.2.86, Ext D dated 12.2.86, Ext E dated 17.1.86, Ext F dated 23.11.87 and Ext G dated 14.12.87 showing the sale of lands of these deeds at prices ranging from Rs.4,000/- to Rs.l4,OOOA per kani. DW 1 has deposed that the claimant's land was acquired in the instant case to construct an embankment on the bank of the river to protect the lands lying on the Northern side of the river and the lands of the sale deeds Ext A to G also lie on the Northern side of the fiver and are close to the acquired land in the instant case. The DW 1 also exhibited the LA Collector's assessment note Ext H dated 26.3.1986. 9. In para 9 of the instant judgment the learned LA Judge said, " it is not disputed that the land covered by the judgment (copy of decree marked Ext 4) is near the land of the claimant," This is not correct. The LA Collector in his objection filed before the LA Judge did dispute this by categorically saying that the lands in the LA Case (No.6 of 1992 and decree Ext 4) referred to by the claimant were situated for away from the claimant's land acquired in the instant case. Be that as it may, taking note of the DW 1 s statement that an appeal was being filed against the decree Ext 4, learned LA Judge thought it fit not to asssess the market value of the claimant's land acquired in the instant case on the basis of the said decree Ext 4. Be that as it may, taking note of the DW 1 s statement that an appeal was being filed against the decree Ext 4, learned LA Judge thought it fit not to asssess the market value of the claimant's land acquired in the instant case on the basis of the said decree Ext 4. In para 9 learned LA Judge further held "that the land (covered by decree Ext 4) and the acquired land (in the instant case) may covered by the same notification, but there may be a gulf of difference between their location and their respective potential value." Having regard to the submission and evidence adduced on behalf of the LA Collector, learned LA Judge categorically held, "obviously the market price of Exts 1 and 2 (exhibited by the claimant) cannot the equated with the acquired land (in the instant case). The claimant has not, produced any evidence of any other transaction of land nearby his land in the recent past in or around the time of acquisition." Under section 23 of the Act, compensation which is payable to the claimant is the market value of the land at the rate of publication of the notification under section 4. In the instant case, such notification was published in the Tripura Gazette on 23.8.1986. But the only sale deed Ext 1 dated 23.3.89 and Ext 2 dated 15.3.89 produced by the claimant were executed after lapse of more than 21/2 years of the said notification. It has been held in AIR 1996 Gujrat 16 (DB) that sale deed executed after 2 years of the notification acquiring the land in question cannot be relied on. In AIR 1984 Orissa 86 (DB) also it has been held that where the transactions under the sale deeds produced by the claimant was not made within reasonable proximity of the time of the date of notification under section 4, the said sale deeds are not safe guide for determination of the market value of the land, 10. In AIR 1984 Orissa 86 (DB) also it has been held that where the transactions under the sale deeds produced by the claimant was not made within reasonable proximity of the time of the date of notification under section 4, the said sale deeds are not safe guide for determination of the market value of the land, 10. The learned LA Judge was of the view that the sale deeds Exts 1 and 2 and decree Ext 4 are of little assistance to the claimant (who examined no other witness except himself and no other document except Exts 1,2 and 4 in support of his claim), and yet learned LA Judge jumped into the conclusion that the claimant should "be given compensation at the rate of Rs.20,0007- (Rupees twenty thousand) per kani.", and thereby double the compensation amount. Learned LA Judge recorded no reason therefor except stating that "the claimant has been deprived of his land for ever." This is absolutely no ground for doublings the compensation, for in each and every land acquisition case the owner is deprived of his land for ever. The finding of the learned LA Judge as to the market price of the acquired land at the rate of Rs.20,000/- per kani was therefore, not based upon evidence and legitimate deduction therefrom and hence cannot be sustained. 11. An appeal under section 54 of the Act being in continuation of the proceedings in reference under section 18 of the Act, the consideration relevant at the stage of deciding the reference holds goods, also when the matter comes up for a decision in appeal. At the time of the hearing an appeal under section 54 of the Act, the State can rely upon any transaction which was not considered by the LA Collector at the time of enquiry under section 11 of the Act. For and on behalf of the LA Collector, DW 1 exhibited 7 sale deeds Exts A to G dated 26.4.85, 6.11.85, 5.2.86, 12.2.86, 17.1.86, 23.11.87 and 14.12.87 respectively. The notification under section 4 of the Act was published on 23.8.1986. Hence, the transactions under the aforesaid 7 sale were made within a reasonable proximity of time of the aforesaid notification, 5 of such transaction being made shortly before the notification. The notification under section 4 of the Act was published on 23.8.1986. Hence, the transactions under the aforesaid 7 sale were made within a reasonable proximity of time of the aforesaid notification, 5 of such transaction being made shortly before the notification. DW 1 claimed to have visited the acquired land before and after the acquisition notification and said that the aforesaid sale deed lands are closest to the acquired land. He can be reasonably expected to have knowledge about these lands in course of his professional works as an Amin. Nothing has been elicited in his cross-examination to discredit his evidence and I find no reason to disbelieve his sworn testimony. DW 1 also exhibited LA Collector's assessment note Ext H dated 26.3.86 wherein it has been stated inter alia, that the acquired land on the river side of the existing bundh was on threat of flood water and hence nobody would purchase such land for construction of home-stead. Sale deeds Exts A to G had shown sale of lands nearby acquired land at price from Rs. 4,000/- to Rs. 14,000/- per kani. It has been held in (1968) 2 SCJ 869 (870) that where sale deeds pertaining to different bonafide transactions are relied on behalf of the Govt, that representing the highest value should be preferred to the rest unless there are strong circumstances justifying different course such as taking as average of the sale deeds. In the instant case no such circumstances exist. I, therefore, direct that the appellant-claimant be given compensation at the rate of Rs. 14,000/- (Rupees fourteen thousand) per kani. 12. In the result, it is ordered that the respondent claimant be awarded compensation for his acquired land at the rate of Rs.14,000/- (Rupees fourteen thousand) per kani. The impugned judgment and decree dated 8.6.1994 passed by the learned LA Judge stands modified to that extent. The rest of the impugned judgment and order is left undisturbed. 13. This first appeal is accordingly allowed to the extent indicated above. No costs. Send down immediately the lower Court's record with a copy of this judgment and order.