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Gauhati High Court · body

2017 DIGILAW 1430 (GAU)

Assam State Electricity Board v. Renu Baishya

2017-11-13

PRASANTA KUMAR DEKA

body2017
JUDGMENT : 1. Heard Mr. A.D. Chaudhury, learned counsel appearing on behalf of the appellant. Also heard Mr. S.K. Medhi, learned senior counsel assisted by Mr. A. Das, learned counsel appearing for the respondents. 2. By this common judgment the aforesaid Land Acquisition Appeals are disposed of. 3. The land covered under these appeals were acquired under the same Notification No. RLA/155/94/21-22(A) dated 18.7.1996 under section 4(1) of the Land Acquisition Act, 1894 (‘the Act’) by the Government of Assam for construction of 220 K.V. Sub-Station by A.S.E.B. in L.A. Case No. 18/1993. The declaration under section 6 of the Act was issued on 19.9.1996. 4. The said 35 bighas, 1 katha, 10 lechas of land covered by various dag and patta numbers of village Sarusajai under Beltola Mauza, district Kamrup was initially requisitioned in the year 1985 and thereafter the acquisition proceeding under the Act was initiated by issuing notification under section 4(1) of the Act on 18.7.1996. The award thereafter was passed by the Collector, Kamrup fixing the market value of the acquired land at Rs. 20,000 per katha for giving compensation to the present respondents for the land so acquired. It is pertinent to mention here that the possession of the land so acquired was handed over to the appellant-Assam State Electricity Board (‘ASEB’) on 11.9.1985 where after the said appellant started construction over the said land. On demand a very nominal amount was paid as only recurring compensation to the private respondents for the period from 11.9.1985 to 30.6.1994. After fixation of the market value of the acquired land @ 20,000 per katha, the present private respondents accepted the amount awarded by the Collector under protest and preferred application under section 18 of the Act. The Collector referred the petition to the learned District Judge, Kamrup at Guwahati. The claimants/respondents claimed compensation @ Rs. 1,00,000 per katha with additional compensation under section 23(1A) and 23(2) of the Act alongwith other reliefs. The respondent Smt. Renu Baishya, the respondent No. 1 in LA Appeal No. 9/2010 was the petitioner in Reference Case No. 36/1998, Sri Kumud Bora, the respondent No. 1 in LA Appeal No. 10/2010 was the petitioner in Ref. Case No. 43/1999, on the death of the Sewali Prabha Dutta her legal heirs Himangsu Dutta and Suman Dutta, the respondent Nos. Case No. 43/1999, on the death of the Sewali Prabha Dutta her legal heirs Himangsu Dutta and Suman Dutta, the respondent Nos. 1 and 2 in LA Appeal No. 11/2010 were the petitioners in Reference Case No. 35/1998 and Ramesh Tumung, the respondent No. 1 in L.A. Appeal No. 21/2010 was the petitioner in Reference Case No. 3/1999. On the basis of the petition amongst other issues, the following issue was framed for determination by the learned reference court: “Whether the compensation awarded by the Collector for the acquired land of this case fair, adequate and reasonable, if not what will be the fair, adequate and reasonable compensation for the same?” 5. In the aforesaid reference cases, the respective respondent No. 1 in the present appeals in common, examined as many as three witnesses including the respondent No. 1 of LA Appeal No. 21/2010 as PW 3, Lat Mandal as PW 2 and the Senior Asstt. of the Land Acquisition Office as PW 1 and exhibited number of documents in support of their claims. On the other hand respondent No. 1 in Reference Case No. 43/1999 as the petitioner examined two witnesses and exhibited certified copies of two judgments passed in other reference cases in support of his claim. Vide judgment dated 31.3.2005 in Ref. Case No. 43/1999 and vide common judgment dated 24.12.2003 in Ref. Case Nos. 3/1999, 35-36/1998, the amount of compensation was enhanced to Rs. 1,00,000 per katha along with other compensation. Against the aforesaid judgments passed in Ref. case Nos. 43/1999, 35/1998, 36/1998 and 3/1999 the present appellant preferred LA Appeal Nos. 11-14/2007 before this court and by common judgment dated 12.2.2009 in the said LA appeals, this court set aside the award dated 24.12.2003 and 31.3.2005 passed by the reference court. This court impleaded the present appellant as respondent in the aforesaid reference cases and directed the learned reference court to decide the same afresh by allowing the claimants/respondents to re-examine the witnesses already examined and/or to adduce further evidence with opportunity to the present appellant to cross-examine those witnesses and to adduce evidence. After the said remand and setting aside of the said judgments, the private respondents herein filed evidence of one Prasanna Deka, retired Lat Mandal of the office of Land Acquisition, Kamrup, Md. Wajid Ali and Renu Baishya on affidavit and submitted two documents which were exhibited as Exts. 10 and 11. After the said remand and setting aside of the said judgments, the private respondents herein filed evidence of one Prasanna Deka, retired Lat Mandal of the office of Land Acquisition, Kamrup, Md. Wajid Ali and Renu Baishya on affidavit and submitted two documents which were exhibited as Exts. 10 and 11. The present appellant cross-examined all the witnesses and thereafter it filed evidence on affidavit of one Nityananda Bora, Nodal Officer (Law) of the appellant, ASEB as DW 1 and exhibited six numbers of documents which are sale deeds marked as Exts. A to F. The learned Reference Court thereafter hearing the parties to the present appeals, considering the evidence, potential value of land, by way of the common judgment dated 6.3.2010, in the aforesaid reference cases, awarded Rs. 1,25,000 per katha as compensation for the land so acquired while deciding the aforesaid issue No. 1. Being aggrieved the present appeals are preferred under section 54 of the Act against the common judgment dated 6.3.2010 by the appellant-ASEB. 6. Mr. A.D. Choudhury, learned counsel for the appellant submits that learned Reference Court while deciding the issue No. 1 had gone wrong by considering the award passed in Ref. Case Nos. 55-58/1995, subsequently enhanced to Rs. 1,00,000 by this court for acquisition of land for Accountant General Office staff quarter. It is submitted that the appellant produced various sale deeds showing the sale consideration where respective land situated are within the vicinity of the acquired land of the private respondents. Without considering such materials on record the act of relying the award of other reference cases is totally wrong inasmuch as nature of land acquired therein is totally different from the one in the present appeals. He stated further that the land acquired for road of Accountant General Office itself indicates that the land is connected to the National Highway and not agricultural land and it was acquired for the purpose of road and as such the said award cannot be taken as the basis for assessing value of the land in the present case in hand. It is further submitted that the sale deeds, Ext.A and Ext.B cover land purchased, just contiguous to the land of private respondents in the year 1987 by the appellant itself @ Rs. 47,000 per bigha. Exts. It is further submitted that the sale deeds, Ext.A and Ext.B cover land purchased, just contiguous to the land of private respondents in the year 1987 by the appellant itself @ Rs. 47,000 per bigha. Exts. C, D, E and F are the sale deeds of village Sorusajai in the year 1996 which fetched a price within the range of Rs. 24,615 to Rs. 35,000 per katha. The said land falls within the radius of 500 meter from the acquired land. The land of Accountant General Office is situated at a distance of 3 km. away from the acquired land of the private respondents. The fixation of Rs. 20,000 per katha as the compensation of the land acquired bv the Collector is well within the market value on the date of notification and as such the enhancement of the award from Rs. 20,000 per katha to 1,25,000 per katha considering the potentiality of the land and on the basis of the award against the acquisition of the land is totally perverse as the nature of the land are totally different and hit by various guidelines enunciated by the Apex Court. Mr. Choudhury thus sought for setting aside the judgment and award on the aforesaid grounds. 7. In order to support his argument, Mr. Choudhury has relied on the following cases: 1. Mohammad Raofuddin v. Land Acquisition Officer, (2009) 14 SCC 367 . 2. Chandrashekhar v. Additional Special Land Acquisition Officer, (2009) 14 SCC 441 . 3. V. Hanumantha Reddy (dead) by LRs. v. Land Acquisition Officer and Mandal R. Officer, (2003) 12 SCC 642. 4. Sangunthala (dead) through LRs. v. Special Tahsildar (Land Acquisition), (2010) 3 SCC 661 . 5. Himmat Singh v. State of Madhya Pradesh, (2013) 16 SCC 392 . 6. Cement Corpn. of India Ltd. v. Purya, (2004) 8 SCC 270 . 8. Mr. Medhi learned senior counsel appearing on behalf of the private respondents submits that there is no illegality in passing the award enhancing the compensation of the land so acquired from Rs. 20,000 to Rs. 1,25,000 per katha. The enhancement is not at all baseless. It has its base inasmuch as an award passed by the reference court has been taken into consideration along with the potential value of the land. Potentiality of the land can very well be arrived from the demand for land within the said locality. 20,000 to Rs. 1,25,000 per katha. The enhancement is not at all baseless. It has its base inasmuch as an award passed by the reference court has been taken into consideration along with the potential value of the land. Potentiality of the land can very well be arrived from the demand for land within the said locality. Acquired land is hardly 300 ft. away from the National Highway and the land, against which enhancement was allowed to Rs. 1,00,000 per katha from Rs. 20,000 by the High Court is contiguous to the land so acquired from respondents. Further urging the potentiality of the land, Mr. Medhi submits that the locality is the only area for expansion so far the Municipal area of the Guwahati City is concerned and quite naturally the potentiality of the land had increased. Moreso, the land is hardly 3 km. away from the capital city of Assam. 9. Mr. Medhi further argues that the comparison of the sale value of the land is proper way to assess the market value but the same must be contemporaneous to the date of issuance of notification. In the present case in hand two sale deeds exhibited by the appellant are of the year 1987 and the notification under section 4 of the Act was issued in the month of June 1996. Subsequent sale deeds are also on record but vendors/purchasers were not examined by the appellant. So the learned reference court having found the award already passed enhancing the market value by the reference court, upheld and enhanced by the High Court and taking the basis of said enhancement awarded, had done nothing wrong in enhancing the value from Rs. 20,000 to Rs. 1,25,000 per katha the nature of the land being similar. He further submits that there is no bar in taking note of former decision while assessing the value of the land in a proceeding under the Land Acquisition Act. 10. Mr. Medhi in order to bring home his submission relies on the following decision: 1. AIR 1997 SC 2664 2. AIR 1997 SC 2625 3. AIR 1978 Gau. 50 4. (2012) 7 SCC 595 5. (2015) 4 SCC 789 6. (2012) 5 SCC 432 7. (2008) 14 SCC 745 8. (2004) 1 SCC 467 11. 10. Mr. Medhi in order to bring home his submission relies on the following decision: 1. AIR 1997 SC 2664 2. AIR 1997 SC 2625 3. AIR 1978 Gau. 50 4. (2012) 7 SCC 595 5. (2015) 4 SCC 789 6. (2012) 5 SCC 432 7. (2008) 14 SCC 745 8. (2004) 1 SCC 467 11. Before examining the findings of the learned reference court, let us have a look to the various decisions of the hon'ble Apex Court for assessment of the value of the land in land acquisition process. (a) In Purya (supra) the Constitution Bench of the Apex Court held that for bringing a documentary evidence on record the same must not only be admissible but the context thereof must be proved in accordance with law. Secondary evidence as per section 51A of the Land Acquisition Act, 1894 can be brought without primary evidence of a sale deed. This, however, would not mean that the context of the transaction as evidenced by the registered sale deed would automatically be accepted. The word “may” in section 51 of L.A. Act gives a discretion to be exercised judicially, i.e., considering the relevant factors. (b) In Mohammad Raofuddin (supra) the hon'ble Apex Court held that the best method for determination of market value is comparable sale method. If the evidence are not available then award can be considered. (c) In Chandrashekhar (supra) the Apex Court held that the court in principle recognized the admissibility of such previous decision in a subsequent case as far as market value of acquired land is concerned. But the said judgment to be admitted in evidence it must be a previous judgment of court and as an instance it must have been proved by the person relying upon such judgment by adducing evidence aliunde that due regard being given to all attending facts and circumstance it could furnish the basis for determining the market value of acquired land. (d) The findings of Special Dy. Collector v. Kuna Sambasiva Rao (supra) was set aside by a Constitution Bench in Cement Corporation India Ltd. (supra) by holding that the reasoning in Narasaiah case (2001) 3 SCC 530 that section 51A enables the party producing the certified copy of a sale transaction to rely on the contents of the document without having to examine the vendee or the vendor of that document is the correct position in law. In Special Dy. Collector (supra), a 3-Judges Bench of the hon'ble Apex Court held that section 51A of the Act only dispensed the production of the original Sale Deed and directs to receive certified copy of Sale Deed. But examination of the Vendor or Vendee and/or Scribe of the sale deed are required to be examined to prove the transaction to be bona fide, nature of land and other relevant facts for assessment of value of acquired land. 12. In the present case in hand the evidence on record, leaving aside the oral piece of evidence of various witnesses, includes the certified copies of registered sale deeds and judgment of reference cases and also another one passed in cross-objection filed by one Md. Wajid Ali against the appeal preferred by the requiring department as the appellant against the enhancement of the compensation by the reference court. The submission of the learned counsel of the appellant circles mainly with respect to the act of reliance placed by the learned reference court in the award former judgment passed earlier in reference cases leaving aside the contemporaneous sale deeds without comparing the value of the sale price referred therein. In order to examine the submission of the learned counsel for the appellant let us examine the evidence led by the present appellant as respondent in the aforesaid Reference Cases. One Nityananda Bora, Nodal Officer (Law) of ASEB filed his evidence on affidavit simply stating that Exts. C, D, E and F are sale deeds (certified) showing sale transactions of land covered by various Dag numbers of Village Sarusajai under Mauza Beltola and the said land are situated within 500 meters of land so acquired. But in his cross-examination he deposed that he does not know the land purchased vide Exts. C, D, E and F. So far Exts. A and B (sale deeds by way of which the appellant-Board purchased land in the year 1987) are concerned, in his cross-examination he denied that the land acquired of the private respondents are better than the land involved in the sale deeds Exts. A and B. Further in his cross-examination he deposed that he heard the value of the and in the locality was Rs. 3,00,000. A and B. Further in his cross-examination he deposed that he heard the value of the and in the locality was Rs. 3,00,000. The Ext ‘A’ and ‘B’ are sale deeds much prior to the notification in the year 1996 and the sale value cannot be considered to be the basis for assessing the value of land acquired vide notification of June 1996. 13. From the evidence of the appellant side it is apparent that it has failed to bring on record about the nature of the land so purchased except by deposing that the land is within the close proximity of the land acquired but not with respect to the location of the land nor with respect to potentiality of the land. The learned reference court while appreciating the evidence on record so far the aforesaid evidence is concerned, came to the finding that where definite materials are not forthcoming either in the shape of sale or similar land in the neighbourhood on or about the date of notification or otherwise other sale instances as well as other evidence have to be considered. 14. Let us come to the evidence brought on record by the respondents. The respondents amongst various sale deeds spanning from the period 1992 to 1994 also exhibited two judgments and award passed in Ref. Case No. 20/1995 and the judgment in cross-objection passed in C.O. No. 10/2000 arising out of RFA No. 39/2000 respectively by the Reference Court and the High Court. The Ref. Case No. 20/1995 was filed by the legal heirs of one Dr. Amlendu Sen and the cross-objection was filed by one Wajed Ali, son of late Maftaz Ali alongwith with others. The land in Reference Case No. 20/1995 is situated at Village Moidam which was acquired vide notification under section 4 of Act dated 23.9.1992. On the other hand the land under cross-objection was acquired under notification dated 18.7.1992 and the value of the land thereunder was fixed at Rs. 20.0 per katha by the Collector, Kamrup which was enhanced to Rs. 60.0 by the Reference Court. Being aggrieved, RFA No. 39/2000 was filed by Accountant General (A&E), Assam, the requiring Department in this court. The said Wajed Ali filed the Cross-Objection (C.O.) in the said RFA No. 39/2000 with a prayer for further enhancement of the award passed by the Reference Court enhancing from Rs. 20,000 to Rs. 60,000. 60.0 by the Reference Court. Being aggrieved, RFA No. 39/2000 was filed by Accountant General (A&E), Assam, the requiring Department in this court. The said Wajed Ali filed the Cross-Objection (C.O.) in the said RFA No. 39/2000 with a prayer for further enhancement of the award passed by the Reference Court enhancing from Rs. 20,000 to Rs. 60,000. The said C.O. was registered as C.O. No. 10/2000 in RFA No. 39/2000. The said appeal was dismissed and the C.O. was allowed by enhancing the value of land so acquired to Rs. 1,00,000 from the one fixed by the Collector, Kamrup at Rs. 20,000 and enhanced to Rs. 60,000 per katha by the reference court. The said award was exhibited as Ext. 11. 15. The land in Ref. Case No. 20/1995 was acquired for the purpose of using the same as road setting off from the National Highway and the Government land allotted for construction of the office of the Accountant General (A&E). The rate per katha was fixed at Rs. 60,000 by the Collector, Kamrup which was enhanced to Rs. 1,25,000 by the reference court. The Requiring Department challenged the said award enhancing to Rs. 1.25.0 in the High Court and the hon'ble Apex Court which was not interfered at all. 16. The said Wajed Ali who was one of the cross-objectors in C.O. 10/2000 in RFA No. 39/2000 deposed before the learned Reference Court as witness on behalf of the private respondents in all the aforesaid Reference Cases proving the judgment and award of the cross-objection. He deposed in examination-in-chief that acquired land of respondents are situated on the northern side of National Highway 37 and the nature of the land is same as to the one referred in the cross-objection. Both the plot of land are in close proximity about 100 to 200 ft. of the land of ASEB which, is situated on the Northern side of National Highway 37 and about 200 ft. to 300 ft. away from his land acquired for staff quarter of the Accountant General (AG) Office. The present land in question was acquired in the year 1996 after the acquisition of his land in 1993 and as such market value of the land of the respondents should be minimum Rs. 2 lakhs per katha. to 300 ft. away from his land acquired for staff quarter of the Accountant General (AG) Office. The present land in question was acquired in the year 1996 after the acquisition of his land in 1993 and as such market value of the land of the respondents should be minimum Rs. 2 lakhs per katha. In his cross-examination he deposed that the present land is about 50 meters away from the National Highway and about 300 ft. away from his land acquired and 150 ft. to 200 ft. from the staff quarter of A.G. Office. 17. Another witness, the Lat Mandal (retired) who was the official lat mandal at the time of demarcating the land acquired for staff quarter of A.G. Office deposed that the nature of the land acquired for the staff quarter is same as that of the present land in question. In his cross-examination he supported the fact that the land acquired for the staff quarter of A.G. Office is about 300/400 ft. away from the land of ASEB. 18. PW 3, Renu Baishya (respondent in LA Appeal No. 9/10) deposing in all the reference cases introduced the Exts. 10 and 11, respectively. The award passed in Reference Case No. 20/1995 and the judgment in C.O. No. 10/2000 in RFA No. 39/2000 proves the enhancement of the value of land subject-matter therein. The witnesses Wajed Ali and Lat Mandal had made specific statement about the Exts. 10 and 11 and its proximity to the land so acquired from the respondents. 19. The learned reference court in order to assess the value of the land was left with the following piece of evidence on record: (i) Sale deeds put on record both by respondents and the present appellant. Out of the same the respondents failed to call the vendors and purchasers of the various sale deeds so exhibited. Similarly the appellants failed to bring any of the parties to the sale deeds (Exts. C, D, E and F) in order to bring on record the nature of the land mentioned therein and the reason as to why the sale transaction was carried out. The Exts. A and B are the sale deeds wherein in the appellant is the purchaser but the said sale was carried out long before the date of notification, i.e., 18.7.1996. (ii) The judgment and award passed in Ref. The Exts. A and B are the sale deeds wherein in the appellant is the purchaser but the said sale was carried out long before the date of notification, i.e., 18.7.1996. (ii) The judgment and award passed in Ref. Case No. 20/1995 and C.O. No. 10/2000 in RFA No. 39/2000. The land referred in C.O. No. 10/2000 and the proximity of the said land to the present land and the nature had been proved by the beneficiary of the award in the cross-objection. (iii) The oral evidence of Lat Mandal who was involved in the process of demarcation in the land acquisition process through his deposition supported the deposition of Wajed Ali, the beneficiary of the award, passed in the cross-objection No. 10/2000. The said piece of evidence satisfies the condition laid down in the ratio in Mohammad Raofuddin (supra) and the one laid down in Chandrashekhar (supra). 20. In Purya (supra) the Constitution Bench of the Apex Court held as follows: “33. The submission of Mr. G. Chandrashekhar to the effect that the contents of a sale deed should be a conclusive proof as regards the transaction contained therein or the court must raise a mandatory presumption in relation thereto in terms of section 51A of the Act cannot be accepted as the court may or may not receive a certified copy of sale deed in evidence. It is discretionary in nature. Only because a document is admissible in evidence, as would appear from the discussions made hereinbefore, the same by itself would not mean that the contents thereof stand proved. Secondly, having regard to the other materials brought on record, the court may not accept the evidence contained in a deed of sale. When materials are brought on record by the parties to the lis, the court is entitled to appreciate the evidence brought on record for determining the issues raised before it and in the said process, may accept one piece of evidence and reject the other.” 21. The appellant failed to show that it had to construct road from the National Highway to the land so acquired nor to the one which it purchased by way of sale deeds, Exts. A and B in the year 1987, at least to prove the fact that the land acquired from the respondents are not situated nearby the National Highway. The appellant failed to show that it had to construct road from the National Highway to the land so acquired nor to the one which it purchased by way of sale deeds, Exts. A and B in the year 1987, at least to prove the fact that the land acquired from the respondents are not situated nearby the National Highway. It is quite obvious that such location of the land nearby the National Highway had definitely higher potentiality so far the value of the land is concerned. The evidence on record shows that the land referred in the cross-objection is nearby the land acquired from the respondents. 22. In Purya (supra) hon'ble Apex Court observed that the reference court has jurisdiction to sieve through the evidence on record and by discarding other piece of evidence can accept a particular piece of evidence. There is no bar in accepting a previous judgment of the court pertaining to land acquisition matter. But the same must be proved by the claimant as if he/she is producing the said piece of evidence as a plaintiff in a suit discharging the burden as required under the Indian Evidence Act. The present appellant failed to discharge its onus to disprove the facts similarity in the nature of the land referred in the cross-objection nor with respect to its close proximity of the said land with the one in the present case in hand. 23. There is no dispute with respect to the judgment passed in C.O. No. 10/2000 arising out of the RFA 39/2000. There is no dispute with regard to the close proximity of the land from the National Highway. The submission of learned counsel for the appellant that the enhancement of the compensation to Rs. 1,25,000 from Rs. 60,000 in Ref. Case No. 20/1995 (Ext. 10) was because of the fact that the same was attached to the highway is of no help inasmuch as the appellant failed to show any development cost incurred by it for construction of road for its accessibility from National Highway to the land acquired from the present respondents. It is on record that the land acquired is situated within 300 meter from the National Highway 37. 24. It is true that the market value of particular plot of land cannot be assessed with arithmetical precision. It is on record that the land acquired is situated within 300 meter from the National Highway 37. 24. It is true that the market value of particular plot of land cannot be assessed with arithmetical precision. The hon'ble Apex Court in (2012) 7 SCC 595 (supra) held that the land acquisition Collector is required to keep in mind while fixing the market value of the acquired land, the following factors: (i) Existing geographical situation of the land; (ii) Existing use of the land; (iii) Already available advantages like proximity to the National Highway or road and/or developed area; (iv) Market value of other land situated in the same locality/village/area or adjacent or very near the acquired land. 25. The learned court below held that the acquired land is cultivable land which is situated by the side of National Highway. The land has requisite potentiality as building site and also for constructing industrial complex. As such findings are on the basis of available materials on record. The appellant failed to discharge the onus put to it while the respondents discharged their burden with respect to the point of potentiality of the land which has to be looked into by the reference court, inasmuch as the said reference proceeding is by a judicial court and the award passed therein has the force of a decree. The learned reference court took into consideration the judgment and award after holding that the village Borsajai, Sarusajai and Moidam to be situated by the side of National Highway and the said village are nearby each other and finally assessed the value of the land at the rate of Rs. 1.25 lakhs per katha. 26. Considering the discussion made herein above this court finds no perversity for interference in the judgment and the award passed by the learned Court of Additional District Judge, Kamrup at Guwahati and as a result, all the four appeals are dismissed by this common judgment. 27. Payment of compensation to the private respondents whose land were initially requisitioned and subsequently acquired starting the process since the year 1996 shall be awarded in terms of judgment and decree passed by the learned Addl. District Judge, Kamrup, Guwahati dated 6.3.2010 in the reference cases without any delay. 28. Send back the LCR. 29. No cost.