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Gauhati High Court · body

2010 DIGILAW 838 (GAU)

Manju Jalan v. Collector of Kamrup

2010-11-09

I.A.ANSARI

body2010
JUDGMENT I.A. AnsarI, J. 1. This is an appeal under Section 54 of the Land Acquisition Act, 1894 ('the 1894 Act'), read with Section 12(2) of the Assam Land (Requisition and Acquisition) Act, 1964 ('the 1964 Act'), against the judgment and decree, dated 16.9.2006, passed by the learned Additional District Judge, Kamrup (FTC No. 2), Guwahati, in Reference Case No. 11/2003, arising out of land Acquisition Case No. 17/74 (Pt). 2. I have heard Mr. G.N. Sahewalla, learned senior counsel, appearing on behalf of the Appellants, and Mr. P.S. Deka, learned Government advocate, appearing on behalf of the Respondents. 3. There are two grounds, on which this appeal has been pressed for hearing by the Appellants, the two grounds being, (i) whether the compensation, which has been determined by the learned court below, is correct in the face of the materials on record and the law relevant thereto, and (ii) whether the interest, which has been awarded @ 9% per annum, is in accord with the requirements of the law contained in that behalf? 4. Coming to the question of compensation, it may be noted that the Petitioner's land, measuring 3 Kathas, has, admittedly, been requisitioned, vide order, dated 6.5.1981, for the purpose of establishment and expansion of the Guwahati Medical College Hospital, by invoking the provisions contained in Section 3 of the 1964 Act and possession of the said plot of land has been delivered, under Section 4 thereof, to the college authorities on 12.8.1981. There is also no dispute that the compensation, payable during the period of requisition, has to be determined by the Collector in terms of Sub-section (4) of Section 11 and, when the compensation is so determined, an award shall be made by the Collector. If a person feels aggrieved by the award so made under Section11(4), he may, under Section 12(1)(b), apply to the Collector for making a reference to the court, the court, under Section 2(b) having been defined to mean a Principal Civil Court of original jurisdiction and includes the court of Additional Judge, Subordinate Judge or Munsif, whom the State Government may appoint, by name or by virtue of his office, to perform, concurrently with any such principal court under the said Act. It is Section 11(4), which is material for the purpose of this appeal in the sense that it is Section 11(4), which embodies the scheme for determination of compensation. 5. I may, however, pause here to point out that Section 12(2) of the 1964 Act makes it clear that subject to the provisions of 1964 Act, the provisions of the 1894 Act, shall mutatis mutandis apply in respect of any reference made to the court under Sub-section (1). Because of the fact that it is Section 54 of the 1894 Act, which provides for appeal, the present appeal is an appeal under Section 54 of the 1894 Act read with Section 12(2) of the 1964 Act. 6. In the case at hand, it needs to be borne in mind that there is no written agreement between the parties as regards payment of compensation for the land requisitioned and the Appellant had claimed compensation @ 7.5% per annum on the market value of the land at Rs. 2,05,000, per Katha, for the year 1981-83, Rs. 3,00,000, per Katha, for the year 1983-86, Rs. 4,60,000, per Katha, for the year 1986-89, Rs. 8,50,000, per Katha, for the year 1989-95, and Rs. 12,00,000, per Katha, for the year 1995-98. 7. Let me, now, turn to the scheme of determination of compensation in the case of requisition. The scheme for determination of compensation, as embodied under Section 11(4), is as under: (4) Where any land is requisitioned under Section 3, there shall be paid subject to the provisions of Sub-section (5) below, to every person interested such compensation as may be agreed upon in writing between such person, and the Collector or in the absence of agreement, reasonable compensation in respect of- (a) the requisition of such land; and (b) the damage done during the period of requisition of such land other than what may have been sustained by reasonable wear and tear and irresistible force: Provided that in determining the amount of compensation whether in the case of agreement or otherwise, such amount shall not exceed the rent payable under the provisions of the Assam Urban Areas Rent Control Act, 1961, or the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 or the (Assam Temporarily Settled Districts) Tenancy Act, 1953 so far as they may be applicable or of any of the statutory reenactment or modification thereof. 8. 8. From a careful reading of what Section 11(4) of the 1964 Act embodies, it clearly transpires that the compensation, payable to the land owner, in the case of requisition of a land, shall be such as may be agreed upon, in writing, between such a person and the Collector. In the case, however, where there is no such agreement, a reasonable compensation has to be determined. In other words, the amount of compensation, which is to be paid in the case of requisition of land, is determined either by agreement between the land owner and the requisitioning authority, i.e., Collector, or, in the absence of such agreement, reasonable compensation has to be determined by the collector. What is, however, extremely important to note is that the proviso to Sub-section (4) of Section 11 makes it clear that the amount of compensation, irrespective of the fact as to whether there is any agreement or not, shall not exceed the rent payable under the provisions of Assam Urban Areas Rent Control Act, 1972, or the Assam Non-Agricultural Urban Areas Tenancy Act, 1955, or the (Assam Temporarily Settled Districts) Tenancy Act, 1953, so far as they may be applicable or of any of the statutory re-enactment or modification thereof. 9. In the case at hand, there is no dispute that the land, in question, falls within the urban area and it is the Assam Urban Areas Rent Control Act, 1972, which is applicable to the facts of the present case. The scheme for determination of rent, payable under the Assam Urban Areas Rent Control Act, 1972, is seven and half per cent of the market price of the land and the estimated cost of construction of the building with its fittings and fixtures and also the municipal taxes. 10. In support of their case, the Appellant proved four sale deeds and three lease deeds. PW1, who had purchased one of the plots of lands, covered by the said four sale deeds, and who, by constructing a godown over the said land, leased out the land by executing three lease deeds, has deposed that he (PW1) receives rent for the leased out premises @ Rs. 5.75 per square feet. In his cross-examination, PW1 has, however, admitted that the rent was fixed by way of agreement. According to the evidence of the Appellant, the land, in question, is adjacent to the land of PW1. 5.75 per square feet. In his cross-examination, PW1 has, however, admitted that the rent was fixed by way of agreement. According to the evidence of the Appellant, the land, in question, is adjacent to the land of PW1. 11. As far as PW2 is concerned, he is a registered valuer, whose report is relied upon by the Appellant. According to this witness, the market value of the land of the Appellant, in the year 1981-82, was Rs. 3,25,000 per Katha, Rs. 4,50,000 in 1986-87, Rs. 9,00,000 in 1989-90 and Rs. 16,00,000 per Katha in 1995-96. The valuer claimed that before preparing the valuation report, he consulted the sale deeds of the neighbouring lands of Japorigog and Ulubari and he also visited the land of the Appellants. But, in his cross-examination, PW2 admitted that the land of the Appellants and the land of the four sale deeds are at a distance of about 3/4 kilometres. 12. The learned court below has noted that report of the said registered valuer cannot be taken as a basis to hold that the value of the requisitioned land would be the same as that of the land covered by the said four sale deeds, for, the land is not situated in the same area, where the land, covered by the said four sale deeds is situated. This finding cannot be held to be unfounded or wholly unreasonable. 13. The Appellant also examined Ram Chandra Das, Senior Office Superintendent, Steel Authority of India Ltd. ('the SAI Ltd.'), Guwahati, and Manaranjan Sarma, an employee of Industrial Finance Corporation of India ('the Corporation'). Both these persons proved their respective sale deeds and, according to the evidence of Ram Chandra Das, the SAI Ltd. purchased, in the year 1996, the land, at Ulubari, Guwahati, for a consideration amount of Rs. 17.5 lakhs. So far as the said Corporation is concerned, it had purchased 3 Bighas, 4 Kathas, 4 Lechas of land, in the year 1987, for a sum of Rs. 4 lakhs. From their evidence, it transpires that the plot of land, which forms the subject-matter of controversy in this appeal, was located within the area of Dental College, Guwahati, which is at a distance of about 1 kilometre from the land, which the SAI Ltd. and the Corporation had purchased. 14. 4 lakhs. From their evidence, it transpires that the plot of land, which forms the subject-matter of controversy in this appeal, was located within the area of Dental College, Guwahati, which is at a distance of about 1 kilometre from the land, which the SAI Ltd. and the Corporation had purchased. 14. The learned District Judge's discussions on the evidence on record, and the findings arrived at, for the purpose of determining the requisition-rent, read as under: In this case, the Petitioners in their petitions have claimed requisition compensation for their land on the market value at Rs. 2,05,000 per Katha for 1981-83, Rs. 3,00,000 from 1983-86, Rs. 4,60,000 per Katha from 1986-89, Rs. 8,50,000 per Katha from 1989-95, and Rs. 2,00,000 from 1995-2000. But in their evidence, they have claimed more value for their land than what they have claimed in their claim petition. The Petitioners are relying on the witnesses and the evidence and the documents produced by them. They are also relying valuation report prepared by the registered valuer. On perusal of the evidence, oral as well as documentary, I found that the land purchased by PW5, Manaranjan Sarma, Industrial Finance Corporation, is situated by the side of the Guwahati-Shillong Road, and this witness testified that the land of the Petitioners is situated at a distance of about 1 kilometre from the GS Road. Similarly, from the evidence of Ram Chandra Das of Steel Authority of India Ltd., it is found that the land purchased by them is situated at Ulubari, which is at a distance of 1/2 kilometre from the GS Road. But the land of the Petitioners is situated at a distance of about one to one and half kilometre from the GS Road. The registered valuer has also admitted in the cross-examination that the land of the four deeds is situated at a distance of 3-4 kms. from the land of the Petitioners. On perusal of the evidence, I found that the land purchased by the witnesses is situated near the GS Road, which is a busy commercial area and the value of the land is much higher near the GS Road and the land of the Petitioners, which is situated at a distance of about 1-1.5 Kms. from the GS Road. On perusal of the evidence, I found that the land purchased by the witnesses is situated near the GS Road, which is a busy commercial area and the value of the land is much higher near the GS Road and the land of the Petitioners, which is situated at a distance of about 1-1.5 Kms. from the GS Road. I do not find any justification to put the same value of the land situated near the GS Road with that of the land belonging to the Petitioners, which is situated inside the Dental College. The learned Collector fixed the market value of the land at Rs. 35,000 per Bigha. There is nothing in the record to show as to how the learned Collector put the aforesaid value and, in my view, he fixed the market value arbitrarily without giving any opportunity of hearing to the Petitioners and the market value would be much higher than what has been fixed by the learned Collector. If, we consider the market value of the land near the GS Road and the land of the Petitioners, I think, the value of the land, claimed by the Petitioners in the claim petitions, is justified and proper. Accordingly, the market value is assessed at the following value rates: Rs. 2,00,000 per Katha in the year 1981-83 Rs. 2,50,000 per Katha in the year 1983-86 Rs. 4,00,000 per Katha in the year 1986-89 Rs. 6,50,000 per Katha in the year 1989-95 Rs. 9,00,000 per Katha in the year 1995-2000 Rs. 12,00,000 per Katha in the year 2000-05 Requisition-rent at the rate of 7.5 per cent on the market value of the land as fixed above be awarded to the Petitioners. 15. I have carefully gone through the analysis of the evidence on record by the learned court below. The learned court below has correctly pointed out that the registered valuer has admitted that the land, covered by the four sale deeds, are located at a distance of about 3/4 kilometre from the land of the Petitioners (i.e., the Appellants herein). In such circumstances, the market price of the land, which the registered valuer had taken into account, could not have been relied upon as the land was situated far away from the land of the Appellant. 16. In such circumstances, the market price of the land, which the registered valuer had taken into account, could not have been relied upon as the land was situated far away from the land of the Appellant. 16. On a close scrutiny of the evidence on record and the appreciation thereof by the learned court below, I do not find that there is any infirmity in the conclusion reached by the learned court below, as regard the market price of the land and the compensation payable. In such circumstances, as far as the reasonable compensation, fixed by the learned court below, is concerned, the same cannot be said to be suffering from any infirmity, legal or factual. 17. Coming to the question of interest, it needs to be mentioned that Mr. G.N. Sahewalla, learned senior counsel, referring to the decision of the Supreme Court, in P.C. Goswami v. Collector of Darrang AIR 1982 SC 1214 , has submitted that in the case at hand, learned court below has ordered 9% interest to be paid; whereas, the 1894 Act makes provisions for 15% interest if the amount, awarded as compensation, is not paid within a year of the award and it is the 1894 Act, which shall apply to the facts of the present case so far as the rate of interest is concerned. 18 In P.C. Goswami (supra), the Supreme Court has pointed out that in matters of payment of solatium, no discrimination can be made on the basis of the provisions of the 1964 Act vis-a-vis the 1894 Act inasmuch as there is no justification for discrimination between an acquisition under one Act and an acquisition under another Act. The relevant observations, appearing, in paragraph 7, in this regard, read as under: 7. There is, however, one contention advanced by Mr. Nandi, which, in our opinion, deserves to be accepted. He contends that in the matter of payment of solatium, no discrimination can be made between acquisitions under the Assam Act and those made under the Land Acquisition Act. Section 4(3) of the Assam Act itself says that if a land is acquired under that Act, the State Government shall be empowered to apply to such land any of the provisions of the Land Acquisition Act, 1894. Section 4(3) of the Assam Act itself says that if a land is acquired under that Act, the State Government shall be empowered to apply to such land any of the provisions of the Land Acquisition Act, 1894. In a judgment (judgment dated 1st April, 1980 in Civil Appeal No. 848/1977, reported in AIR 1980 SC 1438 , entitled State of Kerala v. T.M. Peter) given by this Court very recently to which Mr. Nandi has drawn our. attention, it was held that there is no justification for discriminating between an acquisition under one Act and an acquisition under another Act insofar as payment of solatium is concerned. This should be more so in respect of an acquisition to which the State Government is empowered to extend the provision of the Land Acquisition Act. Mr. Naunit Lal has not been able to controvert this position in view of the judgment to which we have referred above. We accordingly direct that the State Government shall pay to the Appellant solatium at the rate of 15% on the compensation awarded to him by the High Court. Except for this modification, the decree passed by the High Court is confirmed. The order or remand passed by the High Court will stand. 19. Resisting the submissions, made by Mr. G.N. Sahewalla, that the rate of interest ought to have been awarded as prescribed by the 1894 Act, Mr. Deka, learned Government advocate, submits that as far as the acquisition of land is concerned, a person may be entitled to receive interest in terms of the 1894 Act, but, so far as the rate of interest, in the case of requisition of land, is concerned, the rate of interest, as prescribed by Section 13 of the 1964 Act, which shall be applicable, the rate of interest, in respect of requisition, being 6% per annum from the date of award till the date the award is paid. 20. For the purpose of resolving the controversy, Section 13 of the 1964 Act is reproduced below: 13. Payment of interest. 20. For the purpose of resolving the controversy, Section 13 of the 1964 Act is reproduced below: 13. Payment of interest. - When the amount of any compensation payable under this Act is not paid or deposited within thirty days from the date of the award, the Collector shall pay the amount awarded with interest thereon at the rate of 6 per cent per annum from the date of the award until it shall have been so paid or deposited. 21. From a bare reading of the provisions of Section 13, it becomes clear that Section 13 makes no distinction between the rate of interest, payable on the awarded amount, whether the interest is payable on an amount in respect of a land, which is requisitioned, or in respect of the land, which is acquisitioned. Section 13, therefore, applies to both requisition as well as acquisition of land. 22. In the light of the decision, in P.C. Goswami (supra), which Mr. Sahewalla relies upon, there can be no escape from the conclusion that in respect of acquisition of land, the State Government cannot make any discrimination whether it acquires the land under the 1964 Act or under the 1894 Act. In either case, the rate of interest has to be one and the same. This apart, even Sub-section (3) of Section 6 of the 1964 Act makes the provisions of the 1894 Act applicable to the acquisitions, which may be made under the 1964 Act. 23. From the scheme of the two Acts, namely, the 1894 Act and the 1964 Act, what transpires is that, in the case in the case of acquisition of land, rate of interest, as prescribed by Section 28 of the 1894 Act, would apply. Should there be a distinction between the rate of interest, when land is acquired and when land is requisitioned? In this regard, it may be, once again, pointed out that it is Section 13 of the 1964 Act, which makes provisions for payment of interest, and Section 13makes no distinction or difference between the rate of interest, payable on an awarded amount, when the land is requisitioned, or when the land is acquired, irrespective of the fact whether the land is requisitioned or acquisitioned, the rate of interest remains uniform. Logically, therefore, when the rate of interest, in the case of acquisition of land, in Assam, is governed by the provisions of the 1894 Act (irrespective of the fact as to whether the land is acquired under the 1964 or 1894 Act), there is no reason as to why Section 28 of the 1894 Act, where under the rate of interest is payable in a case of acquisition, be not invoked in, and/or applied to, the case of requisition too. 24. Because of what have been discussed and pointed out above, it becomes clear that it is the rate of interest, as prescribed by Section 28 of the 1894 Act, which would apply to a case of 'requisition' too even if the 'requisition' is made under the provisions of the 1964 Act. Section 28reads as under: 28. Collector may be directed to pay interest on excess compensation.- If the sum which, in the opinion of the court, the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the court may direct that the Collector shall pay interest on such excess at the rate of nine per centum per annum from the date on which he took possession of the land to the date of payment of such excess amount: Provided that the award of the court may also direct that where such excess or any part thereof is paid into court after the date of expiry of a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into court before the date of such expiry. 25. From a bare reading of Section 28, it becomes clear that if interest is not paid within a period of one year from the date, on which possession of the land is taken, interest at the rate of 15%, per annum, shall be payable, from the date of expiry of the said period of one year, on the amount of excess, or the part thereof, which has not been paid before the date of expiry. 26. 26. In the case at hand, no compensation has been paid by the State, though the possession of the land was taken over in the year 1981. Considered in this light, it becomes clear that the Appellant is entitled to receive interest(c) 15% per annum, from the date of requisition of the land, until the date, when the total amount of compensation, as determined by the learned District Judge, is paid to the Appellant. If the Appellant has already received the amount, as determined by the order, impugned in this appeal, the interest shall be accordingly determined and paid by the Respondents within a period of three months from today. 27. In the result and for the reasons discussed above, this appeal partly succeeds. While the total compensation, as determined by the learned court below, is not interfered with, the rate of interest, which the learned court below has ordered to be paid, shall stand modified as indicated above. 28. With the above observations and modifications, made in the impugned judgment/decree, as regards rate of interest, this appeal shall stand disposed of. 29. No order as to costs.