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Gauhati High Court · body

2015 DIGILAW 1308 (GAU)

Rezia Khatun Bibi v. State of Assam

2015-10-09

RUMI KUMARI PHUKAN

body2015
JUDGMENT : By this common judgment and order, I propose to dispose of all above 7 nos. of appeals as all these appeals, preferred under Section 54 of the Land Acquisition At, 1894, have arisen out of the common judgment and order, dated 21.7.2004, passed by the learned District Judge, Dhubri, in Misc. (L/A) Case No.210/02, Misc. (L/A) Case No.211/05, Misc. (L/A) Case No.212/02, Misc. (L/A) Case No.213/02, Misc. (L/A) Case No.214/02, Misc. (L/A) Case No.215/02, Misc. (L/A) Case No.216/02, Misc. (L/A) Case No.217/02, Misc. (L/A) Case No.218/02, Misc. (L/A) Case No.219/02, Misc. (L/A) Case No.220/02, Misc. (L/A) Case No.221/02 and Misc. (L/A) Case No.222/02 dismissing the reference made by the District Collector, Dhubri under Section 18 of the Land Acquisition Act, 1894 and thereby upholding the Award No.19 passed by the District Collector, Dhubri, in L.A. Case No.12/93-94. 2. The appellants herein, who were petitioners in Misc. (L/A) Cases referred hereinbefore, have filed the instant appeal challenging order dated 21.7.2004, passed by the District Judge, Dhubri, dismissing the above mentioned Misc. cases and upholding the award passed by the District Collector, Dhubri in L.A. Case No.12/93-94, whereby the petitioners’ land, had been acquired by the Deputy Collector, Dhubri at Village Thakuranbari covered by Periodic Patta Nos.110, 170,30, 242,174, 209,241, 243, 173, 172, 144, 198, 31, 283 and 108 under Dag Nos. 132B, 133B, 139B, 140B, 141B, 624B, 624B, 145B, 143B, 146, 147B, 148B, 153B, 473B, 484B, 485B, 486B, 566B, 580, 596B, 458B and 144 B totalling to an area of land measuring 17B – 4 K- 13 Lessas and at Mankachar Chit No.2 (Extended town portion) covered by Periodic Patta No.217, 67, 48 & 49 under Dag Nos. 499B, 500B, 504B, 506B & 507B totalling an area of land measuring 0B-4K-19 Lechas. The learned Collector, Dhubri fixed the value of the land at Rs.19,000/- per Bigha and awarded a sum of Rs.83,662.14 only to the appellants as total compensation towards market value of the land, value of Zirat etc. vide Award No.19 in L.A. Case No.12/93-94. It is submitted by the appellants that the market value of the land at the relevant time was about Rs.1.75 lakhs per Bigha and the present market value of the land is about Rs.5 lakhs per bigha as Mankachar has become extended town at present. 3. vide Award No.19 in L.A. Case No.12/93-94. It is submitted by the appellants that the market value of the land at the relevant time was about Rs.1.75 lakhs per Bigha and the present market value of the land is about Rs.5 lakhs per bigha as Mankachar has become extended town at present. 3. The appellants have preferred these appeals assailing the impugned order on the ground that while determining the question of compensation to be paid to the appellants for acquisitioning the land of the appellants, the learned court below had not taken into consideration, all the relevant factors and had failed to consider the exhibited sale deeds in ascertaining the fair and reasonable market value of the acquired land prevailing at the time of acquisition. Another ground on which these appeals have been preferred is that the learned District Judge had not taken into consideration the fact that the award had been made by the Deputy Commissioner-cum-Collector, Dhubri. 4. I have considered all the relevant records pertaining to all the appeals and considered the pleadings between the parties before the Court below as well as documents so relied upon by the appellants as well as the respondents. The learned counsel for the appellants has vehemently opposed to the findings so given by the Reference Court and has submitted that it has failed to appreciate the matter in proper perspective of law. The Referral Court should consider such reference case as a suit and it has to be proved by the parties like any other civil case which is not done in this case and the Court has mechanically accepted the plea raised by the respondent authority. It has also been contended that the Court below has failed to appreciate as to what basis the respondent has assessed the value of the land and the written statement has been given in concise and cryptic manner without revealing any sort of documents or sale deeds which was relied on to assess the compensation. No any comparative chart was prepared to show the land value at the time of notification dated 26.10.1997. No any comparative chart was prepared to show the land value at the time of notification dated 26.10.1997. Except filing of W.S. the respondent authority did not discharge their liability to prove/substantiate their W.S. The Court made no endeavour to assess the market value as on the date of notification and also refused to accept the evidence so produced by the appellant to prove the value of the land at the relevant time and has summarily rejected Exts.1, 2 and 3, the sale deeds so produced by the appellants on the ground of non-examination of the owner of the land and or non-examining of the attesting witnesses which is not legally acceptable. That apart, no effective cross-examination was made on the point of Zirat and other properties over the disputed land. No any issue was framed on the point of actual market value of the land or as to on what basis the Collector has assessed the value of the land. 5. Contending further, the learned counsel for the appellants has submitted that the order so passed by the Referral Court is without any legal basis. Reliance has been placed on the following decisions : 1) The Hon’ble Supreme Court in 1988 (3) SCC 751 (Chimanlal Hargovinddas Vs. Special Land Acquisition Officer, Poona and another) wherein it has been held that - “3. Before tackling the problem of valuation of the land under acquisition it is necessary to make some general observations. The compulsion to do so has arisen as the trial court has virtually treated the award rendered by the Land Acquisition Officer as a judgment under appeal and has evinced unawareness of the methodology for valuation to same extent. The true position therefore requires to be capsulized. 4. The following factors must be etched on the mental screen: (1) A reference under Section 18 of the Land Acquisition Act is not an appeal against the award and the court cannot take into account the material relied upon by the Land Acquisition Officer in his award unless the same material is produced and proved before the court. (2) So also the award of the Land Acquisition Officer is not to be treated as a judgment of the trial court open or exposed to challenge before the court hearing the reference. (2) So also the award of the Land Acquisition Officer is not to be treated as a judgment of the trial court open or exposed to challenge before the court hearing the reference. It is merely an offer made by the Land Acquisition Officer and the material utilised by him for making his valuation cannot be utilised by the court unless produced and proved before it. It is not the function of the court to sit in appeal against the award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an appellate court. (3) The court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it. (4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the court. Of course the materials placed and proved by the other side can also be taken into account for this purpose. (5) The market value of land under acquisition has to be determined as on the crucial date of publication of the notification under Section 4 of the Land Acquisition Act (dates of notifications under Sections 6 and 9 are irrelevant). (6) The determination has to be made standing on the date line of valuation (date of publication of notification under Section 4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price. ...........”. 2) Further in (1985) 2 GLR 53 (Shri Radha Mohan Goenka –Vs.- The Collector of Kamrup Gauhati), it has been held as below :- “ While considering the market price of land on the basis of the market value of comparable lands fairly proximate to the relevant date, the court necessarily ascertains the market price of adjacent lands possessing similar advantages. Although in a strict sense it may not be said to be an inter-parte decision but, one of the main functions of the Court involves ascertainment of the market price of adjacent lands similarly situated on the date of the Notification. Such an award, therefore, cannot be said to be the determination of the market price of the acquired land only as it also determines the market price of comparable lands adjacent to the lands at the relevant date. Apparently it may be a determination of market price of the acquired land but in fact the Court decides and determines the market price of the adjacent lands, possessing similar advantages. .....”. 3) In AIR 1969 SC 255 (Chaturbhuj Pande and others –Vs.- Collector, Raigarh), it has been held that even if parties cannot prove the market value, the Court is to prove the same. In assessing the value to be attached to oral evidence, they are bound to call into aid their experiences of life. As Judges of fact, it was open to the appellant Judges to test the evidence placed before them on the basis of probabilities. 4) In 2008 (3) GLT 879 (Nalini Bordoloi and ors. Vs. District Collector, Jorhat) in para 17 of the judgment, it has been held that – “17. The Reference under Section 18 of the Act is not an appeal against the award and, therefore, the Court cannot take into account the material relief 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.” 6. 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.” 6. On the basis of above, it has been submitted that the ratio of the decisions mentioned above is not at all applied in this case and mere filing of W.S. is not enough to prove the matter unless substantiated by proper evidence. 7. On the other hand, the learned counsel for the State Respondent has submitted that there is no illegality in the assessment of the land value and while the appellants have already received their compensation without any protest, the same cannot be assailed at this stage. It is also contended that appellants have failed to prove the sale deed as has been discussed by the Referral Court, so the same cannot be accepted in evidence. Further it is contended that the land shown in the sale deed does not pertains to the area of the land under assessment so the same cannot be the basis to assess the market value of the land. 8. I have considered the rival submissions of both the parties and the decision so relied upon by the learned counsel for the appellants. As has been urged by the learned counsel for the respondents that the sale deeds were not proved by producing the owner as well as witness to the sale deed as has been observed in the impugned judgment, it can be noted that the said submission of the learned counsel for the respondents as well as the findings of the Court below who has refused to accept the certified copy of the sale deeds in evidence is without any legal basis in view of the provision of Section 51-A of the Land Acquisition Act, 1984, which provides as follows :- 51-A. Acceptance of Certified Copy as Evidence : In any proceeding under this Act, a certified copy of document registered under the registration Act, 1908 (16 of 1908) including a copy given under Section 57 of the Act may be accepted as evidence of transaction recorded in such documents. 9. 9. As we found, the respondents herein has not given any specific averment in the W.S. so filed before the Court below as to on what basis they assessed the value of the land. The written statement so filed by the respondents is reproduced below :- “IN THE COURT OF DISTRICT JUDGE :::::::::: DHUBRI Misc. (L.A.) Case No.218/02 Rezia Khatun Vs. The Collector, Dhubri Written objection of the Opp. Party : 1. That, the petition is not maintainable. 2. That, the reference petition is time barred. 3. That, the statements made in para 1 & 2 of the petition are not true as per record. 4. That, the awardee has accepted the compensation without any protest. 5. That, the statements made in para 3(a) are denied. The market value of the land was assessed properly on the basis of the sale deeds of 1992 to 1996 of village Thakuranbari @ Rs.19,900/- per bigha. 6. That, as regards the contents of para 3(b) of the petition it is submitted that there was one No. Of Simul tree, 15 Nos. Of Mander Trees and 2 nos. of Amita trees at the time of acquisition and R.610.00 has been paid for those trees. There were no bamboo and Banana trees found at the time of preparing Zirat List. 7. That, after acceptance of the award without protest the subsequent claim of the petitioner by filing the reference petition is not maintainable. Therefore, it is prayed that your honour would be pleased to reject the petition with cost. VERIFICATION I, Sri N.F.H. Hussain, L.A.O., Dhubri do hereby solemnly affirm and declare that the above contents of the written objection are true to the best of my knowledge, belief and information and I sign this verification on this 9th day of May/2003 at Dhubri. Sd/- Land Acquisition Officer Dhubri Signature & Seal” 10. The respondent authority adduced no evidence, either oral or documentary, to assert their plea in their W.S. one except sketch map demarcating the area of the land acquired and one copy of official document showing the total amount of land acquired in Village-Thakuranbari, Extension under Town Mancachar Circle. Though, the valuation of the land is stated to be determined on the basis of nine sale deeds from 1992 to 1996, but a piece of such sale deed or any comparative chart is produced or proved. Though, the valuation of the land is stated to be determined on the basis of nine sale deeds from 1992 to 1996, but a piece of such sale deed or any comparative chart is produced or proved. Peculiarly enough the learned Court below relied heavily upon the said W.S. and taken the same as a gospel of truth has accepted the compensation award as has been given by the Deputy Collector, Dhubri which is without any legal basis. 11. On the other hand, the appellants in all the cases have produced three certified copies of Sale Deeds vide Exts.1, 2 and 3 and which can be accepted in evidence as per Section 51-A of the Act and it is to be noted that the said land as described in the above three exhibits is from same place as has been mentioned in the schedule of the land like Village – Thakuranbari, P.S. Mancachar and it pertains to the years 1991, 1994 and 1995 and in the present case the notification for acquisition of land was published as on 22.7.1997. In the present case the value of the land per bigha has been assessed as Rs.19,900/- whereas according to the aforesaid sale deeds, the value of land per bigha will be Rs.1,17,000/- (average). Obviously, the assessment made by the Collector at the time of awarding compensation is much below the prevailing rate at the date of notification. 12. Now regarding the assessment of the market value, the Hon'ble Apex Court, in (1993) 4 SCC 245 , reported in Gulzara Singh v. State of Punjab, has held that “ to determine the market value of the land under Section 23(1) of the Act, the sales of the land under requisition, if any, or the sales in the neighbourhood lands that possessed of same or similar potentialities or fertility or other advantageous features would furnish basis to determine just and fair market value on the premise of a hypothetical willing vendor and willing vendee. The willing vendor who would offer the land and willing vendee who would agree to purchase the land as a prudent man in normal market conditions as on the date of Notification or near about the date of the notification is the acid test. The willing vendor who would offer the land and willing vendee who would agree to purchase the land as a prudent man in normal market conditions as on the date of Notification or near about the date of the notification is the acid test. If sale transactions relate to the lands under acquisition and it found to be genuine and bona fide transactions between willing vendor and vendee then it may be considered but reasonable margin must be given in fixing wholesale price. The sale and purchase of lands at a throw away price at arm's length or depressed sales or façade of sales brought into existence in quick succession to inflate the market value would not offer any basis to determine just market value. In order to adjudge whether sales are bona fide sales between willing vendor and willing vendee and whether the consideration mentioned in the deed was, in fact and really passed on under transaction; whether the lands covered by sale deeds and relied on, possessed of same or similar potentialities or fertilities or advantageous features would be brought on record only by examining the vendor or the vendee or if neither of them is available, the attesting witness who has personal knowledge of the bargain and passing of the consideration are mandatory. Every endeavour would be made to fix fair and reasonable market value.” 13. In Viluben Ghalejer Contractor v. State of Gujarat in (1995) 5 SCC 203 , and in Attar Singh v. Union of India, 2009(9) SCC 289 , it has been held that the determination of the market value depend upon the facts and circumstances of each case. 14. Similar view was endorsed by the Apex Court in P. Ram Reddy v. Hyderabad Development Authority; 1995 2 SCC 305 , which relevant paragraph, is quoted as below : “8. Market value of the land under the L.A. Act is the main component of the amount of compensation awardable for such land under Section 23(1) of the L.A. Act. The market value of such land must relate to the date of publication of the notification of giving the public notice of substance of such notification according to Section 4(1) of the L.A. Act.” 15. In the case of Krishi Utpadan Mandi Samiti Sahaswan v. Bipin Kumar & anr. The market value of such land must relate to the date of publication of the notification of giving the public notice of substance of such notification according to Section 4(1) of the L.A. Act.” 15. In the case of Krishi Utpadan Mandi Samiti Sahaswan v. Bipin Kumar & anr. AIR 2004 SC 2895 , it has been held by the Apex Court that for the purpose of land acquisition Act, the market value must be determined on the basis of Sale Deeds of comparable lands. In the given case, as has been noticed, the land Acquisition Officer did not made any such comparable chart about the sale deed. 16. In 2004(3) GLR 73, Assam State Electricity Board v. on death of Jethua Miki, His sons, it has also been held by this Court, that “Sale Deeds which have been executed within a reasonable time from the date of notification, which are bona fide transactions of land, situated nearby the acquired land and having similar advantages, can safely be relied upon by the reference Court for calculating the fair market value of the acquired land.” For arriving at a fair market value, the Court may take into consideration of potentiality of the land being utilized in the near future at a building site although at the relevant time i.e. on the date of notification under Section 4 of the Act, the land is utilized for agricultural purpose. The reference Court held to have committed no error in ascertaining the price of the acquired land on the basis of the Sale Deeds. The damage to the plantation of the land so acquired has also not been properly proved by the appellants’ side so as to assess the Zirat and, accordingly, the same is rejected. 17. Accordingly, the appeals are allowed, determining the market value at Rs. 1,00,000/- per bigha on the enhanced market value, the appellants shall be paid interest under Section 28 of the Land Acquisition Act at the rate of 9% per annum from the date of the issuance of Notification i.e. 26.10.1997 for the first year ending on 25.10.1998 and thereafter, at the rate of 15% per annum till the date of tender of compensation. Interest shall also be paid on the solatium and other statutory benefits. Interest shall also be paid on the solatium and other statutory benefits. The impugned judgment & order dated 21.07.2004 passed by the learned District Judge, Dhubri, in the above mentioned Land Acquisition cases is modified to the extent as indicated above. The concerned Opposite Party is directed to pay the amount within 3(three) months from today.