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2008 DIGILAW 455 (GAU)

Nalini Bordoloi v. District Collector

2008-06-25

AFTAB H.SAIKIA, BROJENDRA PRASAD KATAKEY

body2008
JUDGMENT B.P. Katakey, J. 1. This appeal by the owners of the land acquired under the provisions of the Land Acquisition Act, 1894 (in short, the Act) is against the common judgment and order dated 11-4-2005 passed by the learned Reference Court dismissing the Land Acquisition (Miscellaneous) Cases which were registered on the basis of the reference made by the Collector Under Section 18 of the Act. The present appeal is concerning L.A. (Misc.) Case Nos. 54/97, 56/97, 60/ 97, 63/97, 66/97, 70/97 and 76/97. 2. An acquisition proceeding was initiated by issuing a notification Under Section 4(1) of the Act by the Government of Assam in Revenue Department in the Official Gazette on 9-6-82 intending to acquire a plot of land measuring 61 Bigha 0 Katha 9 Lecha in village Bahatia under Saruchari Mouza of Jorhat Sub-Division of erstwhile Sibsagar District (now, Jorhat District) for construction of a bye-pass of the National Highway No. 37 by registering LA Case No. 5/81-82 the declaration Under Section 6of the Act was thereafter made in the Official Gazette on 8-6-2003. The Collector on 2-11-1985 passed the award Under Section 11 of the Act, computing the value of the land at three different rates per Bigha i.e. Rs.8316/- for agricultural land, Rs.7568/- for homestead/ Bari land, Rs.7188/- for Tokola Bari land and Rs.7188/- for Garingati land, which was approved by the Government on 27-2-1986. The land acquired includes the land covered by various Periodic Patta Nos. 187, 196 & 469 measuring 4 Bighas 1 Katha 11 Lessas belonging to appellant No. 1/LA (Misc.) Case No. 54/97; 0 Bigha 3 Kathas 18 Lessas covered by PP No. 49 belonging to appellant No. 2 (LA (Misc.) Case No. 70/ 97); 2 Bighas 3 kathas 16 Lessas covered by P. Patta No. 105 belonging to appellant No. 3 (LA (Misc.) Case No. 63/97); 1 Bigha 3 Kathas 7 Lessas in PP No. 346 and 362 belonging to appellant Nos. 10 to 12/LA (Misc.) Case No. 60/97 & 66/97); 1 Bigha 0 Katha 18 Lessas in PP No. 345 belonging to appellant Nos. 13 to 15 (LA (Misc.Z) Case No. 56/ 97) and 1 Bigha 3 Kathas 9 Lessas in PP No. 189/(LA (Misc.) Case No. 70/97). The appellants and others being not satisfied with the quantum of compensation awarded by the Collector filed application Under Section 18 of the Act. 13 to 15 (LA (Misc.Z) Case No. 56/ 97) and 1 Bigha 3 Kathas 9 Lessas in PP No. 189/(LA (Misc.) Case No. 70/97). The appellants and others being not satisfied with the quantum of compensation awarded by the Collector filed application Under Section 18 of the Act. The Collector accordingly referred the dispute relating to the quantum of compensation payable in respect of the acquired land to the Court, on the basis of which various LA (Misc.) Cases were registered including the aforesaid LA (Misc.) Cases, which are concerned in the present appeal. Before the learned Reference Court the appellants claimants in their respective LA (Misc.) Cases examined one witness each. However, no sale deed of comparable land in support of their claim for Rs.20,000/- per Katha (Rs.1 lakh per Bigha) for the acquired land was produced and proved. The learned Reference Court thereafter by the aforesaid judgment and order dismissed the LA (Misc.) Cases on the ground that the appellants and other claimants could not produce any evidence to substantiate their claim that the award passed by the learned Collector in their respective cases is improper, unjust and inadequate being not based on the market value of the land acquired, though the burden is on them to establish by adducing reliable evidence that the value assessed was less than the market value of the acquired land as on 9-6-82 i.e. the date of publication of the notification Under Section 4 of the Act in the Gazette. 3. We have heard Mr. D.C. Mahanta, learned senior counsel for the appellants as well as Mr. Pradip Sen Deka, learned State counsel appearing on behalf of the respondents. 4. Mr. Mr. D.C. Mahanta, learned senior counsel for the appellants, challenging the judgment and order passed by the learned Reference Court has submitted that though no sale instances of comparable land was produced and proved by the appellants in the proceeding before the learned Reference Court to substantiate their claim that the Collector's award was not on the basis of the market value of the acquired land, the Reference Court in view of Section 23 of the Act has to determine the market value of the acquired land and also has to ascertain as to whether the Collector has passed the award keeping in view the market value of the acquired land. According to Mr. According to Mr. Mahanta, the award passed by the learned Collector is contrary to the report of the Sub-Deputy Collector, who has recommended awarding Rs.17,000/- Bigha for the first 200 ft. Rs.15,000/- per Bigha for the next 200 ft. Rs.7,000/- per Bigha for cultivable land and Rs.6,000/- per Bigha for Tokila and Faringari land on the basis of sale instances. The learned Reference Court, therefore, aught to have accepted the report of the Sub-Deputy Collector, who is a revenue officer and pass the judgment and order assessing the market value of the acquired land on the basis of such report even though the appellants did not prove any sale instances before the learned Reference Court. Mr. Mahanta has further submitted that the learned Reference Court in passing the judgment and award has completely ignored this aspect of the matter, so also the fact that the acquired land is only 31/2 kilometers away from the Court and is a very valuable land for which the amount as awarded by the learned Collector cannot be the market value of the acquired land. It has further been contended that while determining the market value of the land acquired, the Court is required to bear in mind that there should not be neither unjust enrichment nor undue deprivation to the owner of the land and they should be paid the just compensation for the acquisition and while doing so, the potentiality of the land is also to be considered. It has also been submitted that since the award passed by the learned Collector is contrary to the materials available on record before him at the time of passing the award, the Reference Court ought not to have refused to enhance the amount and ought to have passed the judgment and award on the basis of the report submitted by the Sub-Deputy Collector, which was available before the learned Collector at the time of passing of the award. Mr. Mahanta, therefore, submits that it is a fit case where this Court upon setting aside the judgment and award passed by the learned Reference Court should remit the matter to the said Court for giving a fresh decision by ascertaining the market value of the land. Mr. Mr. Mahanta, therefore, submits that it is a fit case where this Court upon setting aside the judgment and award passed by the learned Reference Court should remit the matter to the said Court for giving a fresh decision by ascertaining the market value of the land. Mr. Mahanta in support of his contention has placed reliance in Ravinder Narain v. Union of India [2003] 2 SCR 424 ; Om Prakash v. Union of India AIR 2004 SC 4135 ; V. Subrahamanya Rao v. Land Acquisition Zone Officer (2004) 10 SCC 640 ; Dhab Bros v. State of M.P. AIR 2005 SC 355 ; Hans Raj Sharma v. Collector, Land Acquisition (2005) 1 SCC 553 ; and Atma Singh v. State of Haryana AIR 2008 SC 709 . 5. Mr. Sen Deka, learned State counsel, on the contrary, supporting the judgment and order passed by the learned Reference Court has submitted that when the appellants have claimed that the amount awarded by the learned Collector Under Section 11 of the Act is not on the basis of the market value of the land acquired and the reference has been made at the instance of the appellants Under Section 18 of the Act, the burden lies on the appellants to prove what is the market value of the land acquired, which, as is evident from the records of the LA (Misc.) cases that the appellants have failed to discharge, hence the learned Reference Court has rightly dismissed the LA (Misc.) cases. It has further been submitted that the award passed by the learned Collector Under Section 11 of the Act is nothing but an offer made by the State to the owner of the land for acquisition and he may or may not be satisfied with such offer. In case the owner of the land is not satisfied with such award, he has the option for filing an application Under Section 11 of the Act claiming reference, which has been done in the instant case and, accordingly, the dispute relating to quantum of compensation was referred to the learned District Judge for decision as required Under Section 18 of the Act. Such proceeding being more or less in the character of a suit and the appellants being the claimants, the burden lies on them to adduce evidence before the learned Reference Court to prove what would be the market value and the Reference Court on the basis of such evidence is required to ascertain the market value Under Section 23 of the Act. As no evidence has been adduced by the appellants to demonstrate the market value of the land, the Reference Court had no alternative but to dismiss the LA (Misc.) cases, submits the learned State counsel. It has further been submitted that since the filing of the application Under Section 18 of the Act and the registration of a reference proceeding before the learned Reference Court pre-supposes the existence of a valid award passed by the learned Collector, the appellants cannot in the reference proceeding challenge the award passed by the learned Collector, on the ground that such award was passed by not applying its mind to all the relevant factors and as such is to be set aside. The learned Reference Court, according to the learned State counsel, no doubt has the jurisdiction to enhance the amount of compensation awarded by the learned Collector, but cannot set aside the award passed by it. The learned State counsel in support of his contention relating to the burden of proof has placed reliance on the decisions of the Apex Court in Chimanlal Hargovinddas v. Special Land Acquisition Officer AIR 1988 SC 1652 and Gafar v. Moradabad Development Authority (2007) 7 SCC 614 . 6. We have considered the submissions of the learned Counsel for the parties and also perused the materials available on record, including the judgment and order passed by the learned Reference Court which is under challenge. 7. 6. We have considered the submissions of the learned Counsel for the parties and also perused the materials available on record, including the judgment and order passed by the learned Reference Court which is under challenge. 7. Section 11 of the Act requires the Collector to make an enquiry into the objection, if any, which any person interested may file pursuant to notice Under Section 9 of the Act, as to the measurement made Under Section 8; the valuation of the land at the date of publication of notification Under Section 4(1) as well as into the respective interests of the persons claiming compensation and to make an award under his hand of-- i) the true area of the land; ii) the compensation which in his opinion should be allowed for the land; and iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him. The Collector, however, before making an award under Sub-section (1) of Section 11 of the Act has to obtain the previous approval of the appropriate Government or of such officer as the appropriate Government may authorize in this behalf. Such previous approval is not required if the appropriate Government passes an order allowing the Collector to make such award without such approval in respect of such class of cases, as may be specified. Sub-section (2) of Section 11 also empowers the Collector to make an award, according to the terms of agreement, without making further enquiry, if it is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate Government. Such agreement shall not be liable to registration under the provisions of the Registration Act, notwithstanding anything contained in the Registration Act, in view of Sub-section (4) of Section 11of the Act. Sub-section (3) provides that the determination of compensation for any land under Sub-section (2) shall not in any way affect the determination of compensation in respect of other lands in the same locality or elsewhere in accordance with the other provisions of the Act. 8. Sub-section (3) provides that the determination of compensation for any land under Sub-section (2) shall not in any way affect the determination of compensation in respect of other lands in the same locality or elsewhere in accordance with the other provisions of the Act. 8. The award of the Collector shall, subject to the other provisions of the Act, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the time, area and value of the land, and the apportionment of the compensation among the persons interested, provides Section 12 of the Act. The Collector while determining the amount of compensation awardable in respect of the acquired land is to be guided by the provisions contained in Sections 23 and 24 of the Act, as envisaged in Section 15 of the Act. 9. The remedy which is available to any person interested, who has not accepted the award, against the measurement of the land or the amount of compensation or the persons to whom it is payable or the apportionment of the compensation amongst the persons interested, has been provided in Section 18 of the Act, under which provision, such person may file a written application to the Collector requiring him to refer such dispute for determination to the Court, stating therein the grounds on which the objection to the award is taken. Such application for reference has to be filed before the Collector within 6 weeks from the date of the Collector's award, if the person filing such application was present or represented before the Collector at the time when the award was made and in other cases within 6 weeks from the date of receipt of the order from the Collector Under Section 12(2) of the Act or within 6 weeks from the date of the Collector's award, whichever period expires first. "Court" has been defined in Section 3(d) of the Act as a principal Civil Court of original jurisdiction, unless the appropriate Government has appointed a special judicial officer within any specified local limits to perform functions of the Court under the Act. 10. "Court" has been defined in Section 3(d) of the Act as a principal Civil Court of original jurisdiction, unless the appropriate Government has appointed a special judicial officer within any specified local limits to perform functions of the Court under the Act. 10. Section 19 of the Act requires the Collector to state, for information of the Court, in writing under his hand - (a) the situation and extent of the land, with particulars of any trees, buildings or standing crops thereon; (b) the names of the persons whom he has reasons to think interested in such land; (c) the amount awarded for damages and paid or tendered Under Sections 5and 17, or either of them, and the amount of compensation awarded Under Section 11; (cc) the amount paid or deposited under Sub-section (3A) of Section 17; and (d) if the objection be to the amount of the compensation, the grounds on which the amount of compensation was determined. Sub-section (2) of Section 19 further requires the Collector to attach a Schedule giving the particulars of the notices served upon, and of the statements in writing made or delivered by the parties interested, respectively. 11. Section 21 of the Act provides the scope of the enquiry in every such proceeding, which shall be restricted to a consideration of the interests of the persons affected by the objection. 12. 11. Section 21 of the Act provides the scope of the enquiry in every such proceeding, which shall be restricted to a consideration of the interests of the persons affected by the objection. 12. The matters which are to be considered in determining the compensation by the Court, in the reference made by the Collector pursuant to the application filed by any person interested, have been laid down in Section 23 of the Act, namely: First the market value of the land at the date of the publication of the notification Under Section 4, Sub-section (1) Secondly the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector’s taking possession thereof Thirdly the damage (if any), sustained by the person interested, at the time of the Collectors taking possession of the land, by reason of severing such land from his other land Fourthly the damage (if any), sustained by the person interested, at the time of the Collector’s taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings fifthly if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and Sixthly the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration Under Section 6 and the time of the Collectors taking possession of the land. 13. Sub-section (1-A) of Section 23 of the Act provides that in addition to the market value of the land, the Court shall in every case award an amount calculated at the rate of twelve percentum per annum on such market-value for the period commencing on and from the date of the publication of the notification Under Section 4, Sub-section (1), in respect of such land, to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. Sub-section (2) further provides that in addition to the market-value of the land the Court shall in every case award a sum of thirty percentum on such market-value, in consideration of the compulsory nature of the acquisition. 14. The matters which are to be neglected in determining compensation by the Court are enumerated in Section 24 of the Act, namely: First the degree of urgency which has led to the acquisition Secondly any disinclination of the person interested to part with the land acquired Thirdly any damage sustained by him which, if caused by a private person, would not render such person liable to a suit Fourthly any damage which is likely to be caused to the land acquired, after the date of the publication of the declaration Under Section 6, by or in consequence of the use to which it will be put Fifthly any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired Sixthly any increase to the value of the other land of the person interested likely to accrue from the use to which the land acquired will be put Seventhly any outlay or improvements on, or disposal of, the land acquired, commenced, made or effected without the sanction of the Collector after the date of the publication of the notification Under Section 4, Sub-section (1); or Eighthly any increase to the value of the land on account of its being part to any use which is forbidden by land or opposed to public policy. 15. Section 25 of the Act provides that the amount of compensation awarded by the Court shall not be less than the amount awarded by the Collector Under Section 11. 16. The Collector, therefore, is required to hold an enquiry in accordance with the provisions contained in Section 11 of the Act and to pass the award. He is to assess the compensation which in his opinion is the market value of the land. The Collector's enquiry and the valuation made is for the purpose of enabling the Government through him to make and tender the amount of compensation to the persons interested. He is to assess the compensation which in his opinion is the market value of the land. The Collector's enquiry and the valuation made is for the purpose of enabling the Government through him to make and tender the amount of compensation to the persons interested. The Collector, however, while ascertaining the compensation payable and in making the award is to take into consideration the matters required to be taken into consideration as provided in Section 23 and to be ignored as provided in Section 24 of the Act. The award made by the Collector, on the basis of the enquiry conducted as required Under Section 11, is merely the decision of the Collector or the appropriate Government through the Collector as to what sums shall be tendered to the persons interested and if such person is not satisfied with the amount of compensation awarded and requires a judicial ascertainment of the market value of the land, he has to file an application Under Section 18 of the Act before the Collector for referring the matter to the Court. The Reference Court is to make the award after ascertaining the market value of the land acquired in terms of the provisions contained in Sections 23 and 24 of the Act and such market value is to be ascertained with reference to the date of publication of the notification Under Section 4(1) of the Act. 17. The Reference Under Section 18 of the Act is an appeal against the award and, therefore, the Court cannot take into account the material relied upon by the Collector in his award, unless such materials are produced and proved before the Court. The Reference Court is to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the materials produced before it. In the Reference proceeding, the claimant is in position of a plaintiff, whose burden is to show that the price offered for his land in the award is inadequate, by placing sufficient materials before the Court to arrive at such a decision. The reference Court, however, is also required to take into consideration the materials placed and proved by the other side, namely the Collector or the requiring department, while ascertaining the market value and passing an award in a reference made Under Section 18 of the Act. (Chimanlal Hargovinddas) (supra). 18. The reference Court, however, is also required to take into consideration the materials placed and proved by the other side, namely the Collector or the requiring department, while ascertaining the market value and passing an award in a reference made Under Section 18 of the Act. (Chimanlal Hargovinddas) (supra). 18. The Reference made Under Section 8 of the Act being on the basis of the objection filed by a person interested, the burden naturally is on such claimant to prove before the Reference Court about its objection relating to the matter, which has been referred to the Court for a decision. Such person cannot, in a reference proceeding before the Court, urge that the award itself is bad on the ground of non-application of mind and, therefore, it has to be set aside, as the Reference Court cannot go into the competency or otherwise of the Collector to pass such award or legality or otherwise of such an award except in respect of the matters covered by Section 18 of the Act, Claiming a reference Under Section 18 of the Act by the person interested pre-supposes existence of a valid award, the quantum of which, apart from other objection allowable under the said provision may be challenged by such person by filing an application for reference. Hence, the burden, in the present case is on the appellants to prove that what has been awarded by the Collector is much less than the market value of the land acquired and the Collector in passing the award has not taken into consideration the matters which are required to be taken into consideration Under Section 23 or required to be neglected Under Section 24 of the Act. The Apex Court in Gafar (supra) has also opined that the burden is on the claimants to establish that the amounts awarded to them by the Land Acquisition Officer are inadequate and that they are entitled to more. It has further been opined that such burden had to be discharged by the claimant and only after the initial burden is discharged, the burden shifts to the State to justify the award. 19. It has further been opined that such burden had to be discharged by the claimant and only after the initial burden is discharged, the burden shifts to the State to justify the award. 19. In Ravinder Narain (supra), the Apex Court has observed that it cannot be laid down as an absolute proposition that rates fixed for small plots cannot be the basis for fixation of the rate in respect of a large plot and in case there is no other material, it may in appropriate cases be open to the adjudicating Court to make comparison of the prices paid for the small plots of land, however, in such cases necessary deductions/ adjustments had to be made while determining the price. It has further been observed that the potentiality of the land is also required to be considered while determining the market value and there is some amount of guesswork involved in determining such potentiality. In the said case, some sale instances were produced before the learned Reference Court, both by the landowners as well as by the Collector. In Om Prakash (supra), the Apex Court has refused to interfere with the judgment passed by the High Court in working out the fair market value of the land acquired on the basis of the several earlier judgments passed by it relating to the acquisition of the comparable land by taking into account the reasonable increase in the market value due to the lapse of time, though the claimants did not produce any evidence in support of their case that there was abnormality in the pace of escalation of price of the land from the year of acquisition concerned in the judgments earlier passed and the year of acquisition of the case in hand. There was, therefore, some material before the Court to determine the fair market value of the land acquired, which is lacking in the case in hand. The Apex Court in V. Subrahmanya Rao (supra) has opined that the market value is to be fixed on the basis of the evidence laid in each case and the Reference Court while arriving at the market value has to take into consideration the various other factors like the proximity of the two lands, nearness of the land, habitation, public amenities or roads etc. meaning thereby that there must be some instances produced or proved by the claimants to substantiate the claim for enhancement of the market value as fixed by the Collector in that regard. In Dhab Bros (supra), the sale instances were also produced and proved before the Reference Court for determination of the market value, so also in Hans Raj Sharma (supra) and in Atma Singh (supra). The aforesaid decisions of the Apex Court as cited by Mr. D.C. Mahanta, learned senior counsel for the appellants, do not lay down the proposition of law that the Reference Court in the absence of production and proof of any sale instances or any award or any other material relating to the comparable land, can enhance the compensation as awarded by the Collector and the burden is on the Collector to prove the basis for passing such award. 20. In the present reference proceedings, which give rise to the present appeal, the appellants had examined one witness each in each of such proceedings. In none of such proceedings, the appellants have adduced any evidence relating to the sale instances of comparable land or of the land of the vicinity or any award passed by any Court in respect of the comparable land, except saying that the land acquired was very valuable land being within the distance of 3½ kilometer from the District Court and, therefore, the reference Court should pass an award by determining the market value of the land at Rs.20,000/- per Katha (Rs. 1 lakh per Bigha). Such a self-serving statement cannot be the basis for enhancement of the amount of compensation awarded by the Collector. The Court cannot without there being any proof held that the award passed by the Collector is inadequate and not on the basis of the market value of the acquired land. The Court also cannot determine the market value of the land in the absence of any proof to arrive at such decision. Since the burden lies on the appellants to produce the proof, in support of their claims, they have to file and prove the sale instances of comparable land or any award in respect of any other comparable land or any other relevant materials, to the satisfaction of the Court, which the appellants have failed to do. Since the burden lies on the appellants to produce the proof, in support of their claims, they have to file and prove the sale instances of comparable land or any award in respect of any other comparable land or any other relevant materials, to the satisfaction of the Court, which the appellants have failed to do. The learned reference Court, in the absence of any evidence in that regard, in our considered opinion, has rightly dismissed the reference cases. In view of the aforesaid discussion, we are of the considered opinion that there is no merit in the appeal and hence the same is dismissed. However, keeping in view the facts and circumstances of the case, we do not make, any order as to costs. Appeal dismissed