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Gauhati High Court · body

2000 DIGILAW 214 (GAU)

Jwin Chyne v. Meiosi Khyllep

2000-06-19

D.N.CHOWDHURY

body2000
A Reference under section 30 of the Land Acquisition Act, 1894 as amended (hereinafter referred to Act) was made by the Collector, East Khasi Hills District, Shillong to the Court of the Special Judicial Officer, Meghalaya for apportionment of the land relating to the compensation for the land acquired by the State Govt for construction of Patharghat Bhaloganj Border Road. The claimant respondent asserted her right on the land in question on the strength of a sale deed marked as Ext 1 dated 13.1.94. By the aforesaid sale deed the claimant acquired land including the land acquired vide Notification dated 13.1.94. The opposite party in the proceeding under section 30 of the Act, the appellant herein admitted about the transfer of the land vide Ext 1 but asserted that by that Ext 1 the land in question was only the paddy field was sold to the claimant and not the road. The road was also taken possession by the authority in the year 1990 and the construction of the road was completed prior to the date of the notification under section 4 of the Act as well as that of the same vide Ext 1. Learned Special Judicial Officer, Meghalaya to whom the reference was made considered the pleadings of the parties and framed issues thereon. In the proceeding the claimant examined five witnesses besides herself and the opposite party/appellant herein examined herself and another witness. The learned Special Judge held that the claimant purchased the paddy field including the acquired land for the purpose of construction of Border Road and accordingly decided the issue in favour of the claimant. Hence the appeal. 2. Mr. Kynjing, learned counsel appearing for the appellant referred to the evidence on record including exhibits and submitted that the appellant sold the paddy field vide Ext 1 including the road and since the aforesaid land on which the road was constructed taken possession of by the respondents/authority in 1990 and completed the construction of the road prior to 1994. Mr. Kynjing., & learned counsel submitted that the appellant sold only the paddy field to the respondents and not the road; and the respondents are/were possessing and cultivating over the said land. 3. Mr. Mr. Kynjing., & learned counsel submitted that the appellant sold only the paddy field to the respondents and not the road; and the respondents are/were possessing and cultivating over the said land. 3. Mr. BK Roy, learned counsel appearing on behalf of the respondents on the other hand submitted that the appellant sold the land shown as Ext 1 which also includes the road in the sale deed. The sale deed also disclosed that the land in her possession that the vendor sold her paddy field to the respondents that means the entire land known as paddy field and the road passes through the paddy field also includes the land in the paddy field. 4. The controversy is confined to a narrow area as to whether the road also fells within the paddy field. The Govt also issued the notification No. RDA/40/ 93/5 dated 13.1.94 under section 4 of the Act. The notification under section 4 is a preliminary notification made by the competent authority showing the intention that the land is needed for public purpose. Both the events took place on the same date namely the preliminary notification under section 4 as well as sale transaction i.e on 13.1.94. In cross examination the aforesaid witness stated that the sale deed Ext 1 only mentioned of the paddy field on which the road was constructed. 5. The only question therefore is confined to determination on the issue as to whether the vendor namely the appellant did has any saleable interest on the land on 13.1.94 including the road that passed through the paddy field. The claimant in her deposition stated about the paddy field in which she was cultivating. She stated that when she purchased the land as per the sale deed there was a road from Patharghat to Bhaloganj as constructed by the BDRF. The road was in existence at the time of the execution of the sale deed. She also stated that the said road passes through his land. Claimant witnesses No. 2 states that he was cultivating the paddy field even on the date without any disturbance. CW 3 deposed about the execution of the Ext 2 that was registered by in favour of the claimant. CW 4 also stated that the road from Bhaloganj to Patharghat which passes through the border of the village and was constructed by the Army known as GREF. CW 3 deposed about the execution of the Ext 2 that was registered by in favour of the claimant. CW 4 also stated that the road from Bhaloganj to Patharghat which passes through the border of the village and was constructed by the Army known as GREF. He also stated that the road known as Rikba Dhorem. He was the witnesses to the execution of the Ext 1. CW 4 in his cross examination also stated that the Ext 1 was sold by the opposite party to the claimant after the road was constructed. CW 5 and 6 stated about the execution of the sale deed. The appellant in her testimony stated that she sold the plot of land after the road was constructed in a portion of the land and she sold the land for Rs 30,000. In cross examination she stated that portion of the land where the Govt acquired falls under the boundaries of Ext 1. Ext 1 has been registered by the Sirdar of Mawlong Sirdarship, East Khasi Hills District on 10th March, 1994. The other witnesses of the appellants were also examined. OP No. 2 also stated that the portion of the land which was sold to the claimant prior to the said sale. 6. From the evidence read out above, it clearly shows that the road was constructed prior to the notification dated 13.1.94, therefore it transpires that the possession of the land was taken over by the Govt prior to the sale made by the respondents as well as prior to the date of preliminary notification dated 13.1.94 the possession of the land was admittedly taken under section 17 of the Land Acquisition Act which shows that the land taken possession of the same. The land taken possession under section 17 vest on the State Govt from the date of possession of the same. The land taken possession under section 17 vest absolutely Govt free from encumbrance therefore in the circumstances appellants could not have any saleable interest to transfer the road to the claimant. The appellant as such was not in a position to sale a portion of the land on which the road was passing, since the road vested on the Govt. Therefore the Ext 1 the sale deed did not reflect the road which was constructed through the paddy field. The appellant as such was not in a position to sale a portion of the land on which the road was passing, since the road vested on the Govt. Therefore the Ext 1 the sale deed did not reflect the road which was constructed through the paddy field. In the circumstances, the judgment and order of the learned Special Judicial Officer, Shillong dated 5.4.97 cannot be sustained holding that the respondent/claimant was entitled for the compensation and said order dated 5.4.97 in Title (Ref) LA Case No. 2 (K) of 1995 passed by the Special Judicial Officer, Meghalaya is accordingly set aside. The appeal is allowed to the extent indicated. There shall, however, be no order as to costs.