Research › Search › Judgment

Gauhati High Court · body

2015 DIGILAW 1005 (GAU)

Md. Sabid Ali v. State of Assam

2015-08-12

N.CHAUDHURY

body2015
JUDGMENT : This first appeal is directed against the judgment and deemed decree dated 28.09.2004 passed by Ad-Hoc, Additional District Judge, Kamrup at Guwahati in reference case No. 23/1999. 2. Land measuring 2 bigha 4 katha 17 lechas situated in village Uttar Jalukbari under Jalukbari mouza in the district of Kamrup was acquired by the State for construction of B.G. railway line. A notification under section 4(1) of the Land Acquisition Act, 1894, was issued for the purpose on 20.03.1992 vide No. RLA-92/92/2. In the notification, land covered by Dag No. 401 (old)/94 (new) was described to be annual patta land belonging to Petua Sheikh, Fazir Ullah and Maminsa Sheikh, all sons of Niram Sah Sheikh. The jurisdictional Collector was of the view that the acquired land was an annual patta land and with that presumption assessed compensation at Rs. 1,58,152.50. Two-third of the aforesaid award amounting to Rs. 1,05,435/- was received under protest on 11.03.1994 but the balance one-third was not received. The present appellant who was also a claimant made a prayer before the Deputy Commissioner for referring the case to the District Judge under section 18 of the Land Acquisition Act and thereupon reference case No. 23/1999 of the court of learned District Judge, Kamrup at Guwahati was registered. On being transferred to the Court of learned Ad-Hoc Additional District Judge at Guwahati, the parties appeared and submitted their respective pleadings. The petitioner challenged decision of the Collector in regard to market value of the land holding that the Collector wrongly assessed the land at the rate of Rs. 60,000/- per bigha whereas it being situated near national highway, ought to have been assessed at least at Rs. 4,00,000/- per bigha. He also claimed that land was of high commercial potentiality in view of its short distance from Airport, University and Bus stand and so award ought to have been accordingly made by the Collector. Upon such rival contentions of the parties, the learned Ad-hoc Additional District Judge framed the following 4 (four) issues and allowed the parties to adduce necessary evidence to prove their respective case. (I) Whether the compensation awarded by the Collector is fair and adequate and if not whether the claimant- petitioner is entitled to get the compensation for the land as claimed for? (II) Whether the claimant-petitioners are entitled to get addl. (I) Whether the compensation awarded by the Collector is fair and adequate and if not whether the claimant- petitioner is entitled to get the compensation for the land as claimed for? (II) Whether the claimant-petitioners are entitled to get addl. Compensation under section 23(1-A) and 23(2) of the L.A. Act, 1894 as amended in 1984? (III) Whether the claimant-petitioners are entitled to get interest under section 28 and 34 of the L.A. Act, 1894 as amended in 1984? (IV) Whether the claimant-petitioners are entitled to any other relief? 3. Claimant petitioner appeared and examined 2 witnesses including himself. In course of his evidence, claimant Sabid Ali stated that he had 1 katha 3 lechas in Dag No. 429, 3 lechas in Dag No. 365 and 5¼ lechas in Dag No. 354. By exhibiting Jamabandi of the said land, he showed that in the year 1961, annual patta land had been converted into periodic patta land by realisation of premium. Ext. 1 shows that in 1961 vide order dated 13.12.1961, the Assistant Settlement Officer collected premium from one Petua Sheikh, Fazir Ullah and Maminsa Shiekh with respect to 2 bighas 3 kathas 17 lechas and thereupon the land was converted into a periodic patta land. Ext. 2 shows that name of Sabid Ali as S/o Fazir Ulla, who was one of the original pattadars. So, it is clear that though the land was originally annual patta land but subsequently, in the year 1961 it was converted into periodic patta land and thereupon the predecessor-in-interest of the petitioner became one of the pattadars. PW 1 further claimed that acquired land is situated adjacent to the national highway whereas Guwahati University and Adabari Bus stand are situated at a near distance. The collector wrongly presumed the land to be the annual patta land and assessed the same at much lower price. He claimed that the market value of the land would be Rs. 4,00,000/- per bigha and he is entitled to get compensation at the same rate. He further claimed that he had a pond in Dag No. 94 and he reared fishes therein but no compensation has been given to him by the Collector on this account. 4. PW 2 is one Hemanga Baishya, son of one Umesh Chandra Baishya. He stated that in Dag No. 428 and 429 of the same locality he purchased 1 katha 3 lechas land. 4. PW 2 is one Hemanga Baishya, son of one Umesh Chandra Baishya. He stated that in Dag No. 428 and 429 of the same locality he purchased 1 katha 3 lechas land. He stated that by sale deed No. 1729/93 he purchased 1 katha 11 lechas of land by making payment of Rs. 80,000/-. The land purchased by him is at a distance of ½ - 1 km from national highway. The land was a low land one. He has constructed the house by filling up the same. The land of Sabid Ali is situated near the national highway. According to him, his land is situated in an interior part. Upon perusal of Ext. 3 it appears that Subrata Talukdar and others sold 1 katha 11 lechas of land to Hemanga Baishya on 07.04.1993 at Rs. 80,000/-. The land is butted and bound by the south of the A.T. Road, by north- S.S. Agarwal, by east - S. Dutta and by west- by his own land. It is situated in village Kumarpara Gaon under Jalukbari mouza. The acquired land was a periodic patta land and it is situated adjacent to the national highway. Considering all these aspects of the matter, learned Reference Court considered the Ext. 3 sale deed and thereupon assessed that the value of the land would be Rs. 2,00,000/- per bigha. This was done by considering that 1 katha 11 lechas of land was purchased by PW 2 at a price of Rs. 80,000/- and in that event, the rate for such land would be Rs. 2,58,000/-. This price was as on 07.04.1993 i.e. nearly one year after issuance of notification under section 4 of the Land Acquisition Act, 1894. The reference court has not allowed interest under section 28 and 34 of the Land Acquisition Act, 1894 on the ground that no claim has been made to that effect. This decision, rendered by judgment and award dated 28.09.2004, has been called in question in the present appeal. 5. I have heard Mr. S Ali, learned counsel for the appellant and Mr. G Sarma, learned Government Advocate on behalf of the respondent. 6. This decision, rendered by judgment and award dated 28.09.2004, has been called in question in the present appeal. 5. I have heard Mr. S Ali, learned counsel for the appellant and Mr. G Sarma, learned Government Advocate on behalf of the respondent. 6. Upon perusal of the materials available on record and hearing the learned counsel for the parties it appears that only point for determination in the appeal would be as follows: Whether the learned Reference Court committed error in estimating the market value of the acquired land at Rs. 2,00,000/- per bigha as on the date of issuance of notification under section 4 of the Land Acquisition Act, 1894? If not, what should be the value on the basis of the materials available on record? 7. Having heard the learned counsel for the parties and on perusal of the materials available on record, it appears that except the evidence rendered by PW 1 and 2, there is no other material available on record to arrive at the finding to the value of the land. Just compensation under section 23 of the Land Acquisition Act, 1894 would be on the basis of market value as on the date of issuance of notification under section 4 of the Act. The claimant appellant adduced documentary evidence in the form of Ext. 3 to bring on record the market value of the land. Although, the land covered by Ext. 3 belongs to a different dag and different village but it is also situated on A.T. Road which is near the acquired land. PW 1 has claimed that land belonging to Ext. 3 is at a distance of ½ - 1 km from national highway whereas acquired land is abutted to the national highway. Mr. S Ali, learned counsel for the appellant submits that if a land at the interior part of the area fetches Rs. 2,56,000/- per bigha, in that event the land abutted to the national highway must bring more price. Mr. G Sarma, learned Government Advocate, on the other hand, submits to the contrary that agricultural land situated in the interior part are rated at higher price in view of their productivity. Land near national highway could never be put for good agricultural income. The question as to whether the land covered by Ext. 3 is an interior land, is also a matter of question. Land near national highway could never be put for good agricultural income. The question as to whether the land covered by Ext. 3 is an interior land, is also a matter of question. This is because from the schedule of Ext. 3 it appears that the land sold under Ext. 3 is adjacent to the south of A.T. Road. In that event, the argument that the land is an interior land cannot be accepted. Although, the names of the villages are different yet there is no evidence to the contrary that both the lands are at vicinity. That being the position, Ext. 3 has rightly been accepted by the learned Reference Court for the purpose of assessing the market value. But even after Ext. 3 was relied upon for the purpose, the land was valued at Rs. 2,00,000/- per bigha instead of Rs. 2,58,000/- in terms of Ext. 3. This is because, if 1 katha 11 lechas of land fetched Rs. 80,000/- to the owner, in that event, the price of the land would have been Rs. 2,58,000/- per bigha. Once learned Reference Court accepted the Ext. 3 as index in the absence of any explanation as to why lower price should be given to the claimant, Reference Court ought to have rated the acquired land at the same rate. State did not lead any evidence to show that land covered by Ext. 3 was more valuable than the one under acquisition. This being the position, this court is constrained to hold that once Ext. 3 has been accepted as index to market value, the rate disclosed by Ext. 3 is applicable to the acquired land as well and accordingly, the market value of the land should be Rs. 2,60,000/- per bigha by rounding off Rs. 2,58,000/-. 8. Although, Mr. S Ali, learned counsel for the appellant, has strenuously urged that the learned Reference Court committed error in not granting any compensation on account of fishery income of the claimant but having perused the deposition of PW 1, I do not find any material to hold that there was really any fishery on the land. PW 1 has stated that he had a pond in Dag No. 94 and he used to rear fishes in the pond. PW 1 has stated that he had a pond in Dag No. 94 and he used to rear fishes in the pond. Now, what was the size of the pond and what amount he used to earn by rearing fishes in that pond, has not been proved by adducing any evidence whatsoever. In passing judgment the learned Reference Court held that there was a fishery on the acquired land but the learned Reference Court did not commit any error in refusing to give compensation to the claimant on this account. 9. However, claim of interest under section 28 of the Land Acquisition Act, 1894 being in the nature of statutory benefits given to the owners of the land, nowhere in the aforesaid section it is stated that such payment would be made on the basis of claim made by the claimant. These are the benefits available to a claimant if payment of compensation is not made within time by the Collector. Here in this case, the only ground for which claimant appellant has been denied benefit of section 28 and 34 is that the appellant did not make any claim for that. The learned Reference Court has not arrived at any finding to the fact that there is no delay or that the appellant was not entitled to interest for any other reason. Having so found, it is clear that the claimant is entitled to interest under section 28 of the Land Acquisition Act, 1894. Under section 28 of the Land Acquisition Act, it 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 till the date of payment of such excess into Court. Here in this case, Collector had assessed compensation on Rs. 60,000/- only per bigha which has been enhanced by the learned Reference Court to Rs. 2,00,000/- and now by this Court on appeal, the amount is further enhanced to Rs. 2,60,000/-. The claimant is entitled to interest under section 28 over this excess amount of Rs. Here in this case, Collector had assessed compensation on Rs. 60,000/- only per bigha which has been enhanced by the learned Reference Court to Rs. 2,00,000/- and now by this Court on appeal, the amount is further enhanced to Rs. 2,60,000/-. The claimant is entitled to interest under section 28 over this excess amount of Rs. 60,000/- at the rate of 9% per annum from the date of taking over possession till realisation. The appellant shall also be entitled to solatium at the rate of 30% on the amount enhanced by this court in addition to what is granted by the learned Reference Court. Under section 23(2) of the Land Acquisition Act, the claim of the appellant for interest under section 23 (1-A) of the Act, as allowed by the learned Reference Court, is also hereby upheld. 10. Send down the records.