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2014 DIGILAW 319 (GAU)

SUBHASH BAROI v. UNION OF INDIA

2014-03-18

UJJAL BHUYAN

body2014
JUDGMENT AND ORDER (ORAL) This case was heard on 11.03.2014 and today is fixed for delivery of order. 2. This is an application under Article 226 of the Constitution of India whereby petitioners have challenged the legality and correctness of the order dated 09.12.2009 passed by the Addl. Deputy Commissioner, Bongaigaon in MC No. 1/2008 declaring that respondent No. 7 is entitled to land acquisition compensation for acquisition of the land in question. 3. Case of the petitioner is that they are the legal heirs of Late Gobinda Chandra Baroi. Father of the petitioners had purchased a plot of land measuring 3 bighas 3 Kathas 19 lechas covered by KP Patta No. 21 Dag No. 83 (Old)/635 (New) of Village No. 1 Nowapara under Bijni Revenue Circles in the district of Bongaigaon from one Maheshwar Roy on 21.02.1959 by executing a registered sale deed. He had also purchased two other plots of land measuring 3 kathas 8 lechas and 3 bighas 2 kathas 11 lechas covered by KP Patta No. 72 Dag No. 290 and KP Patta No. 72 Dag No. 82 (Old)/634 (New) respectively of Village No. 1 Nowapara under Bijni Revenue Circle from one Nareswar Roy on 19.02.1959. Both Maheshwar Roy and Nareswar Roy were brothers. 4. National Highway Authority of India acquired land in the said village in the year 1968 for construction of National Highway (NH) 31. The acquired land included land of petitioners’ father measuring 3 bighas 12 leches covered by KP Patta No. 21 Dag No. 83 (Old)/635(New) and 1 Katha 14 lechas covered by KP Patta No. 72 Dag No. 82 (Old)/634(New). 5. Father of the petitioners received land acquisition compensation to the extent of 50% of the total compensation for acquisition of his aforesaid two plots of land in the year 1969. However, the remaining 50% is yet to be paid. 6. Father of the petitioners expired on 20.04.1995. 7. District Administration of Bongaigaon district finalized the compensation amount to be paid to the petitioners being the legal heirs of Late Gobinda Chandra Baroi but for one reason or the other the payment was not paid. It may be mentioned that the legal heirs of Late Maheshwar Roy also claimed compensation for acquisition of the said land as they contended that the land belonged to them. It may be mentioned that the legal heirs of Late Maheshwar Roy also claimed compensation for acquisition of the said land as they contended that the land belonged to them. At this stage, petitioner approached this Court by filing WP(C) No. 4101/2009 which was disposed of on 22.09.2009 with a direction to the Deputy Commissioner, Bongaigaon to decide on the rival claims to compensation in accordance with law. 8. Following order of this Court, impugned order dated 09.12.2009 was passed by the Addl. Deputy Commissioner, Bongaigaon holding that respondent No. 7 being the legal heir of Late Maheshwar Roy is entitled to the remaining 50% of the compensation i.e. Rs. 4,43,040.00 and rejecting the claim of the petitioners. 9. Hence, this writ petition. 10. Respondent Nos. 5 & 6 representing the District Administration, Bongaigaon district have filed a common affidavit. It is stated that as per record, land measuring 3 bighas 12 lechas covered by Patta No. 21 Dag No. 83 (Old)/635 (New) of Village No. 1 Nowapara under Bijni Revenue Circle was acquired by the then Sub-Divisional Officer (Civil), Kokrajhar on 23.05.1969, which did not stand in the name of Late Gobinda Chandra Baroi. But land measuring 3 Kathas 7 lechas under Patta No. 21 Dag No. 83 (Old)/635(New) of village No. 1 Nowapara under Bijni Revenue Circle was mutated in favour of Late Gobinda Chandra Baroi on 21.04.1969. It is stated that initially land acquisition compensation in respect of the acquired land measuring 3 bighas 12 lechas was wrongly prepared in favour of Late Gobinda Chandra Baroi. Since late Gobinda Chandra Baroi had purchased the land in question from late Maheshwar Roy, then his name should have been mutated in the land records. Since his name is not mutated in the land records, late Gobinda Chandra Baroi was not entitled to receive any compensation for land acquisition and consequently, petitioners being the legal heirs of late Gobinda Chandra Baroi are also not entitled to receive such compensation. There is no infirmity in the order passed by the Addl. Deputy Commissioner, Bongaigaon which is liable to be affirmed. 11. I have heard Mr. A. Dasgupta, learned counsel for the petitioners and Mr. Nur Mahammad, learned Government Advocate, Assam. There is no representation on behalf of respondent No. 7. No affidavit has also been filed on behalf of the said respondent. 12. Mr. Deputy Commissioner, Bongaigaon which is liable to be affirmed. 11. I have heard Mr. A. Dasgupta, learned counsel for the petitioners and Mr. Nur Mahammad, learned Government Advocate, Assam. There is no representation on behalf of respondent No. 7. No affidavit has also been filed on behalf of the said respondent. 12. Mr. Dasgupta, learned counsel for the petitioner in his short but pointed argument submitted that father of the petitioners had purchased the land by way of registered sale deed dated 21.02.1959, a copy of which has been placed on record as Annexure-B to the writ petition. He submits that the aforesaid sale deed is a vital document to show title over the land in question. Mutation of name in the revenue record is not indicative of title and just because the name of Gobinda Chandra Baroi or his legal heirs have not been entered in the revenue records, it cannot be said that claim of the petitioner or their predecessor in interest as title holder of the land in question had no legal backing. Addl. Deputy Commissioner therefore erred in passing the impugned order dated 09.12.2009 which should be set aside and quashed. He further submits that the said authority may be directed to release the compensation amount in favour of the petitioners by taking into account the registered sale deed dated 21.02.1959. 13. Mr. Nur Mahammad, learned Government Advocate on the other hand supports the impugned order dated 09.12.2009. 14. Submissions made have been considered. I have also perused the materials on record. 15. Since the impugned order dated 09.12.2009 is the central issue and is the subject matter of challenge in the present proceeding, the same is quoted hereunder in its entirety for ready reference :- “ 09.12.2009 Both parties present and heard. First Party is represented by Learned Advocate. Seen the directive and observation made in order passed by the Hon’ble Justice on WP(C) No. 4101/2009 on 22nd Sept./2009. Written argument submitted by the Learned Advocate is perused. Under 50% L.A. Compensation in Village 1 No. Nowapara under Bijni Revenue Circle Patta No. 21 & Dag No. 83(Old)/635(New) against area 3B-OK-12 Ls and Patta No. 72(Old)/165(New) & Dag No. 82(Old)/634(New) area 0B-1K-14 Ls an amount of L.A. Compensation-Rs.4,91,320.00 (Rupees four lakhs ninety one thousand three hundred twenty) only was prepared in favour of Gobinda Ch. Baroi S/O Nil Madhab Baroi. Baroi S/O Nil Madhab Baroi. But at the time of payment the legal heir of Shri Jagadish Ray S/O Lt. Maheswar Ray the Original Pattadar claimed that the award is wrongly prepared. After proper verification, Circle Officer, Bijni Revenue Circle vide his report dtd. 31.1.2008, it was informed that Lt. Gobinda Baroi has no share in acquired land. In view of such circumstances Circle Officer & both parties submitted relevant documents for Claim and counter claim. After careful scrutiny of all land records and relevant documents the following facts are summed up. 1. Under patta No. 21(Old)/165(New) and Dag No. 83(Old)/635(New) on area of 3B-OK-12 Ls. Land was acquired vide S.D.O. Kokrajhar letter No. 10876-77 dtd. 23.05.1969 and was corrected on 08.08.1969. Further, in the correction note it was mentioned that area of OB-3K-07 Ls. Under Dag No. 83(Old)/635(New) was mutated in favour of Lt. Gobinda Ch. Baroi vide S.D.C. Order dated 21.04.1969 for necessary correction was made out on 18.04.1974. Therefore, it is clear that Lt. Gobinda Ch. Baroi was not owner of 3B-0K-12 Ls. Under Dag No. 83(Old)/635(New) & Patta No. 21(Old)/165(New) in village 1 No. Nowapara at the time of land acquisition. Subash Baroi S/o Lt. Gobinda Baroi produced a sale deeds 21.09.1959 showing that the purchased land 3B-3K-19 Ls. Land covered by Dag No. 83(Old)/635(New). But record correction did not reflected in land record. As per record Lt. Gobinda Baroi S/O Nil Madhab Baroi was not owner of land by an area of 3B-0K-12 Ls. under Patta No. 21(old)/165(New) 7 Dag No. 83(Old)/635 (New) in 1 No. Nowapara village under Bijni Revenue Circle. Hence Gobinda Ch. Baroi is not entitled for L.A. compensation against the said land. Maheswar Ray the Original Pattadar is the lawful claiment of L.A. compensation. Now, His legal heir Smti. Sante Bala Ray & other will be the lawful claimant. 2. As regard in land under Dag No. 82(old)/634(New) and Patta No. 72(Old)/165(New) in village 1 No. Nowapara an area of land 0B-1K-14 Ls. Vide S.D.O. Kokrajhar’s Order No. 10876-77 dtd. 23.5.1969 was acquired and corrected on 08.08.1969. From the correction note in the Jamabandi of village 1 No. Nowapara, it is quite clear that acquired land being an area of 0B-1K-14 Ls was mutated in favour of Gobinda Ch. Baroi against Dag No. 82(Old)/634(New) and Patta No. 72(Old)/165 (New) in place of Keshab Ch. Ray & others. 23.5.1969 was acquired and corrected on 08.08.1969. From the correction note in the Jamabandi of village 1 No. Nowapara, it is quite clear that acquired land being an area of 0B-1K-14 Ls was mutated in favour of Gobinda Ch. Baroi against Dag No. 82(Old)/634(New) and Patta No. 72(Old)/165 (New) in place of Keshab Ch. Ray & others. Hence, land documents confirm lawful right of L.A. compensation against an area of 0B-1K-14 Ls under Dag No. 82(Old)/634(New) and Patta No. 72(Old)/165(New). The opposite party could not produce any acceptable documents to substantiate their own claim. On the basis of above mentioned facts it has been established that Sri Subhash Baroi & other legal heirs of Lt. Gobinda Baroi will entitled to get the 50% L.A. compensation amounting to Rs.48,200.00 (Rupees forty eight thousand two hundred) only against an area of land 0B-1K-14 Ls. under Dag No. 82(Old)/634(New) and Patta No. 72(Old)/165(New) and Smti. Sante Bala Ray W/O Late Maheswar Ray & others will be entitled to get Rs. 4,43,040.00 (Rupees four lakhs forty three thousand forty) only against an area of land 3B-0K-12 Ls. under Dag No. 83 (Old)/635 (New) and Patta No. 21(Old)/165 (New). Necessary correction is to be made in the Annexure-I accordingly and separate cheques to be prepared against the amount of 50% L.A. compensation indicated above to be sent to P.D. NHAI, PIU, Bongaigaon for necessary signature. Hence, the case is disposed.” 16. A perusal of the impugned order dated 09.12.2009 alongwith the affidavit filed by respondent Nos. 5 & 6 would go to show that the Addl. Deputy Commission had decided the issue of payment of compensation to the respondent No. 7 solely on the ground that it is the name of late Maheshwar Roy, husband of respondent No. 7, which appears in the revenue record. Since the name of the petitioners or their father are not reflected in the revenue record, the Addl. Deputy Commissioner has taken the view that they cannot claim ownership over the land and therefore they are not entitled to compensation. The Addl. Since the name of the petitioners or their father are not reflected in the revenue record, the Addl. Deputy Commissioner has taken the view that they cannot claim ownership over the land and therefore they are not entitled to compensation. The Addl. Deputy Commissioner has also sought to make a distinction as according to him in case of another plot of land measuring 1 Katha 14 lechas covered by KP Patta No. 72 Dag No. 82 (Old)/634 (New) name of Gobinda Chandra Baroi was mutated in the land record and therefore he was entitled to compensation but there was no such mutation in respect of the land in question and therefore neither Gobinda Chandra Baroi nor his legal heirs are entitled to compensation. 17. Land acquisition proceedings in the present case were carried out under the provisions of the Land Acquisition Act, 1894. Without delving into details about various facets of the said Act, suffice it to say that under the Land Acquisition Act, 1894, a person entitled to compensation is a person interested who in a given case may not have title over the land. 18. Section 2 (b) of the Land Acquisition Act, 1894 defines the expression “person interested” which includes all persons claiming an interest in compensation to be made on account of acquisition of the land under the said Act. Even a person having easementory right over the land would be entitled to claim compensation. 19. The National Highways Act, 1956 was enacted by the Indian Parliament for declaration of certain highways to be national highways and for matters connected therewith including acquisition of land for construction of national highways and for payment of compensation. Section 3 A to 3 J of the said Act lays down the scheme for acquisition of land and payment of compensation. The said sections were substituted and introduced in the parent Act w.e.f. 24.01.1997.Without entering into the issue as to whether provisions of the Land Acquisition Act, 1894 or the National Highways Act, 1956 would be attracted in the present case, it may be stated that even in the scheme laid out in the National Highways Act, 1956 from Sections 3 A to 3 J it is the person interested in the land who is entitled to compensation and it is not necessary for him to prove his title. 20. 20. Coming to the facts of the present case, petitioners have placed on record a copy of the registered sale deed dated 21.02.1959 which shows that the land in question had been purchased by their predecessor in interest from late Maheshwar Roy. There is no discussion on this aspect of the matter in the impugned order dated 09.12.2009 though it is mentioned that petitioners had produced a copy of the said sale deed before him but the same was not accepted on the ground that no corresponding correction was made in the revenue record. 21. Addl. Deputy Commissioner rejected the claim of the petitioners and allowed the claim of the respondent No. 7 solely on the ground that name of her husband appeared in the revenue record as the recorded pattadar of the land in question. Since name of the petitioners or their predecessor in interest were not mutated, they cannot be treated as owners of the land and therefore not entitled to compensation. 22. It is no longer res integra that entries in the Jamabandi though have evidentiary value, they are not proof of title on their own [(see) AIR 1994 SCC 227 Guru Amarjit Singh Vs. Ratan Chand and Ors]. The Apex Court in the case of State of Himachal Pradesh Vs. Keshav Ram and Ors. reported in AIR 1997 SCC 2181 was confronted with the question as to whether entry in the settlement papers recording somebody’s name could create or extinguish title in favour of the person concerned. The Apex Court held that such entry in the revenue papers by no stretch of imagination can form the basis for declaration of title. 23. When the petitioners had produced the registered sale deed before the Addl. Deputy Commissioner which clearly showed transfer of the land to their predecessor-in-interest of land by way of sale, it was clearly a superior piece of evidence to show title over the land. The fact that there is no corresponding entry in the revenue record would not make any substantial difference as to the ownership of the land. In any case, in a proceeding for land acquisition compensation, as already noticed above, a claimant need not show or prove his title. All that he has to show and prove to the satisfaction of the competent authority is that he is a person interested in the claim for compensation. 24. In any case, in a proceeding for land acquisition compensation, as already noticed above, a claimant need not show or prove his title. All that he has to show and prove to the satisfaction of the competent authority is that he is a person interested in the claim for compensation. 24. Thus having regard to the discussions made above, this Court is of the unhesitant view that the Addl. Deputy Commissioner, Bongaigaon fell in serious error while passing the impugned order dated 09.12.2009. The same cannot be sustained and is accordingly set aside and quashed. 25. In view of above, the compensation determined by the Addl. Deputy Commissioner shall now be released in favour of the petitioners. 26. Writ petition is accordingly allowed. 27. However, there shall be no order as to cost.