Gauhati High Court
Indian Oil Corporation Ltd vs All India Tea & Trading & Ors on 22 February, 2017
Author: Paran Kumar Phukan
Bench: Paran Kumar Phukan
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
L.A. Appeal 31/2002
with
L.A. Appeal 32/2002
India Oil Corporation Limited
(Assam Oil Division), a Division of
India Corporation Limited registered
under Companies Act, 1956 having its
registered office at G-9, Ali Yuvar Marg,
Bandra (East), Mumbai- 51.
Appellant
-Versus-
1. All India Tea & Trading
Company Ltd., having its
registered office at 22 Ballygunj
Park Road, Calcutta-19
....Respondent
2. State of Assam represented by the Secretary to the Government of Assam, Revenue (LR), Department, Dispur, Guwahati - 781006.
3. District Collector, Cachar, Silchar, Assam. Proforma Respondents BEFORE HON'BLE MR. JUSTICE PARAN KUMAR PHUKAN Advocates for the Appellant : Mr. K.N. Choudhury, Sr. Adv.
Ms. A. Deka Advocates for the Respondents : Mr. P.S. Dutta, Mr. S. Chatterjee & Mr. S. Khound.
Dates of hearing : 29.11.2016
Date of judgment : 22.02.2017
2
JUDGMENT AND ORDER (CAV)
Under assailment in these two appeals is the judgment dated 24.12.2001 passed by the learned District and Sessions Judge, Cachar, Silchar in Misc. LA Case No. 54 of 1993 and Misc. LA Case No. 80 of 1993 awarding compensation of Rs. 14,000/- per bigha in respect of land measuring 240 bighas 8 kathas 9 lechas in LA Case No. 54 of 1993 and Rs. 5,000/- per bigha in respect of the patit land in L.A. Case No. 80 of 1993.
2. The facts of the case are well set out in the judgment of the referral Judge and requires no further proliferation for the purpose of deciding these appeals.
3. In Misc. LA Case No. 54/1993 which arises out of LA No. 6/88-89 lands were acquired in terms of notices u/s 4 and Section 6 of the L.A. Act on 1.6.89 and possession of the land was taken over on 28.8.1989. In Misc. LA Case No. 80/1993 that arises out of LA Case No. 7/1988-89 land was acquired on 06.06.1989. Both the plot of lands are adjacent to each other and were acquired for the purpose of construction of a bottling plant of the appellant Indian Oil Corporation.
4. Admittedly the acquired lands were part of Harincherra Division of Ballacherra Tea Estate. Initially when the award was passed by the learned referral court it was challenged by the IOC before this High Court and the High Court vide order dated 06.06.2002 remanded for a fresh decision by allowing the parties to prove the Exhibits 5 to 11 which were not proved earlier in accordance with law. After remand evidence was led for proving the sale deeds and the learned referral court passed the impugned judgment dated 24.12.2001 determining market value at the same rate. Hence the LA Appeals again at the instance of the IOC. It is worthwhile to mention here that on 04.04.2003 the High Court passed an interim order by which the operation of the award was stayed subject to payment of an additional amount of Rs. 60,00,000/- to the claimant in addition to Rs. 31,00,000/- which was earlier received against which Civil Appeal No. 6525 of 2004 was preferred by the IOC before the Hon'ble Supreme Court. The Apex Court directed the appellant to deposit Rs. 30,00,000/- which was deposited. Then again on 31.10.2003, the appellant was directed to deposit the remaining sum of Rs. 30,00,000/- on condition of the respondent 3 furnishing a bank guarantee but due to financial constraint the respondent could not furnish the bank guarantee. The Apex Court by subsequent order dated 21.02.2010 directed the appellant to deposit only Rs. 30,00,000/-.
5. Heard Mr. K.N. Choudhury, learned Senior Counsel appearing for the appellant, IOC and Mrs. S. Chatterjee assisted by Mr. S. Khound, learned counsel for the respondents.
6. Mr. Choudhury, learned Senior Counsel for the appellant assailing the judgment and award of the referral court submits that the evidence on record was not properly appreciated by the learned referral Judge in as much as, the lands for which transactions were made vide Exts. 5 to 11 are agricultural lands whereas the acquired land is a tea garden land having different potentialities and no evidence was led to show that the lands mentioned in Exhibits are similar in nature to the acquired land having same potentialities and advantage attached to it.
7. By referring to Ext. 1 Soil Testing Report submitted by the claimant, Mr. Choudhury contends that the said report is not acceptable as the soil was brought to the examiner Jagadish Nath, witness No. 1 for the claimant, by somebody else and admittedly he did not visit the site to collect the soil for testing. The Surveyor also in his report did not put his signature and survey was done without notifying the IOC and consequently survey report is not acceptable. Opportunity of cross-examination of the Manager of the Ballacherra Tea Estate was not afforded to the IOC and his evidence needs to be expunged.
8. Mr.Choudhury, learned counsel strenuously contends that there is no evidence led by the claimant Tea Company to prove that there was any building, any construction, supply of electricity, water supply or water storage, any drainage etc. on the acquired land on the date of notification under section 4 of the Land Acquisition Act and evidence is lacking to show that at the time of acquisition there was proper and well maintained plantation on the acquired land and no evidence was led to prove the age of tea bushes and income from the said tea bushes and trees and zirat valuation was not properly done.
9. In controversion, Mr. Chatterjee, learned counsel appearing for the respondent Company submits that proper evaluation of the evidence on record 4 would reveal that the vast tracts of tea estate land are exactly on the PWD road which is situated on the Borkhola-Kalain PWD main road. Mr. Chatterjee painstakingly led me through the entire evidence on record to project that the acquired land is situated near the PWD road and there were tea bushes, lemon trees, shade trees and costly timber trees like teak, sal, karai etc and the appellant company miserably failed to prove that these important features are not near the acquired lands.
10. In the backdrop of the aforesaid contentions while going through the evidence on record, I have found that the land in question was acquired as tea garden land by the collector and notification in this regard was issued. The collector also proceeded to assess the compensation taking the land acquired as tea garden land and not as any agricultural land. As per the Soil Testing Report the land was suitable for tea cultivation and although the report has been assailed by the appellant on the ground that the soil was brought to the analyst and he did not collect the same, it would not be a ground to hold that the soil was not from the tea estate. It is preposterous to say that soil from different tea land would be brought to the analyst to obtain false report by the management of the company. Moreover, if there was any doubt, the IOC could have got the soil examined by other Analyst of their choice, but that was not done.
11. The Govt. approved Surveyor, PW 2 submitted his report Ext.2 after survey. The appellant criticizes the Surveyor's report that it does not bear any date. The survey report shows that the land is adjacent to the PWD road and the said road of the bottling plant is upto to the PWD road and the road of the bottling plant is over the acquired land. Failure of the Surveyor to put the date in the survey report (map) would not be a ground to reject the same as untruthful.
12. Location of the place is an important factor to be considered for assessment of compensation. In the instant case attempt was made by the IOC to show that the location of the land is far away from the PWD road and that it was a flood affected area and there are no important features around the land that could demonstrate importance of the lands acquired. Although the claimant respondent through the evidence of PW 3 Hara Gopal Vyas, the then Manager of Ballicherra Tea Estate, proved that the lands are adjacent to Borkhola-Kalain Road and adjacent to the acquired land there are veterinary hospital, central 5 school, water supply plant, BSF camp, High school and semi-town Jarailtola, save and except, suggestion to the contrary, no positive evidence has come out from the evidence of the appellant to show that these important features are not situated near the acquired land. The appellant argued that PW 3 has not stated the distance between the acquired lands and the hospitals etc., but the appellant also did not lead any positive evidence to show that these important features are not situated near the adjacent lands. PW 3 the manager was examined and he was also cross-examined at length on behalf of the collector. For determining compensation in acquisition proceedings, the court has necessarily to determine the market value of the land as on the date of notification u/s 4 (1) of the Act. The court is required to take into consideration the value for similar land at the material time under genuine transactions. The market value envisages the price which a willing purchaser may offer under bona fide transfer to a willing seller. Depending upon the extent and nature of the land shown the value can differ and while making comparison the price shown in the transactions of variables have to be taken into consideration.
13. The court is also required to ascertain the damage sustained by the person interested by reason of the taking of any standing trees and grooves which may be on the land at the time of collector's taking over possession thereof and damage sustained due to severance of such acquired land from other land is also required to be taken into consideration.
14. The collector is also required to ascertain the damage sustained by the person interested at the time of collector's taking possession of the land by reason of the acquisition injuriously affecting the other property of the land owner, movable or immovable in any other manner or his earnings.
15. If as a consequence of the acquisition of land by the collector, the person interested is compelled to change the residence or place of business, reasonable expenses, if any, incidental to such change is to be assessed, if any damage is sustained by the owner resulting from diminution of the profits of the land between the time of publication of the Declaration u/s 6 of the Act and the time of collector's taking possession of the land.
16. Mr. K.N. Choudhury, learned Senior Counsel appearing for the IOC not only assailed the evidence of the witnesses but also challenged the sale deeds 6 Exts 5 to 11 to contend that the vendors and vendees of the aforesaid sale deeds have not been examined and as such no reliance can be placed on such untested documents.
17. On behalf of the IOC 14 witnesses have been examined and some of them are vendors and vendees and the value of the land have been shown ranging from Rs. 2,000/- to Rs. 5,000/- per bigha.
18. Mr. K.N. Choudhury, learned Senior Counsel submitted that the sale deeds Exts. 5 to 11 relate to a small strips of land which cannot be relevant for determining the value of the acquired land. Mr. Choudhury refers to the evidence of the witnesses examined by the Appellant Company to project that the prices at which the land transactions were made through the sale deeds produced by the Appellant Company is much lower than the compensation fixed by the collector but this aspect was not considered by the court.
19. Relying on the sale deeds Mr. Choudhury contends that the value of the acquired land should be lower than what has been assessed by the referring court. He also contends by referring to the evidence of witness No. 1 and witness No. 2 who are senior officials of the IOC to project that the approach road to the acquired land remains under water for most of the time and there was no proper road to the land. From the evidence of witness No. 1 Sri Rohit Dawar who was the Project Engineer of the IOC it is found that he visited the site in the month of June, 1989. He had stated that there was no proper road to go to the said land and it was flooded and he had to take a boat to reach the land. On his visit he did not find any tea bushes and according to him, he only noticed 2/3 big trees standing over the land and it was covered with wild grass and wild bushes. But his evidence itself reveals that he visited the site in the rainy season and the possibility that the land was submerged under water cannot be ruled out. Even in urban areas also in the rainy season not only the roads but the houses of the residents remain under water for days together and this cannot be a sole ground for reduction of the value of the highland developed for cultivation of tea.
20. The Zirat list Ext. 4 was prepared in presence of the officials of both the parties and said list confirmed that there were large numbers of tea bushes and fruit bearing trees standing over the land which belies the version of witness No. 7 1 for the Appellant Co. that he noticed only 2/3 big trees standing over the land and no tea bushes were noticed.
21. The sum and substance of argument advanced by Mr. K.N. Choudhury, learned Senior Counsel is that although the acquired land is hilly land, it was lying fallow with jungles and without any plantation, surrounded by agricultural land and it was a flood prone area away from habitation and there was no developmental activity near the acquired land. The learned counsel appears to have drawn the conclusion on the basis of the evidence of witness No. 1 and witness No. 2 who visited the spot during the rainy season. There is no evidence that throughout the year the roads remain under water and the roads are not well connected. Tea cultivation is possible only in highland having no scope for water logging and submersion of the approach road in the rainy season cannot be a ground to reduce the value of the acquired land.
22. Mr. Choudhury, learned Senior Counsel relied on the decision of the Apex Court in Manipur Tea Co. Ltd. Vs. Collector of Hailakandi, reported in 1997 (9) SSC 673 to contend that the burden is on the claimants to prove, by adducing cogent, reliable and acceptable evidence, the market value under section 23 (1) of the Land Acquisition Act.
23. Mr. S. Chatterjee, learned counsel, in controversion, submits that as per direction of the High Court in RFA No. 66/1999 and RFA No. 67/1999 the vendors and vendees have been examined as witnesses. He further submits that the sale deeds Exts. 5 to 11 were exhibited without any objection and those should be accepted as proved and genuine. For proper appreciation I have gone through the sale deeds Ext. 5 to 11 and it transpires that Exts. 5 is the sale deed executed on 09.08.1989 and the price per bigha has been shown as Rs. 26,000/-. This land appertains to Patta No. 1 of Borkhola -Kalain covered by Dag No. 46. Similarly Ext. 6 is another sale deed covered by Patta No. 1 and it was executed by one Hara Ch. Modi and the price of the land per bigha has been shown as Rs. 20,800/-. Similarly the price of the sale deeds in Exts. 7 and 8 have been shown more than Rs. 10,000/- per bigha. While Ext. 9 is the sale deed executed by one Kedar Chetri in the year 1989 and the price has been shown as Rs. 13,000/- per bigha. In Ext. 10 also the price of the land is shown as Rs. 31,000/-. Similarly price of Ext. 11 has been fixed at Rs. 38,400/- per bigha.
8It is also elicited that the Exts. 5, 6, 7, 8 and 10 were produced before the learned collector and the valuation of the land with sale statements were accordingly prepared. Those sale deeds were verified by the Sub-Registrar and after verification he found all the sale deeds to be correct. Regarding the genuineness of the sale deeds, the learned counsel for the respondent No. 1 submits that those sale deeds were verified by the Sub-Registrar and other officials of the collector, Silchar and were exhibited before the court without any objection and nothing could be brought out in cross-examination to show that the sale deeds were not genuine or manufactured for the purpose of this case. Moreover witness no. 5 who is an employee of the Sub-Registrar office came with the relevant volumes maintained by the Sub-Registrar office and proved some of the exhibited deeds and on consideration of the entire evidence on record the learned referring court came to the finding that the deeds were genuine and I do not find any reason whatsoever to differ with his opinion. It appears that Exts. 5 to 11 were executed by the vendors between 1984-89 prior to the date of acquisition of the land. The learned counsel for the respondent has strenuously urged that the value of the entire land should be taken into consideration in determining the market value of the acquired land.
24. Mr. Chatterjee, learned counsel has taken me through the letter no. 145/89/24 dated 19.10.1990 issued by the Deputy Secretary to the Government of Assam, Revenue (LA) Department to contend that in the said letter the Deputy Secretary himself admitted that the valuation made by the collector is too law and requested the collector to re-examine the value of the land.
25. The learned counsel for the respondent has taken me through the evidence of the witnesses examined by the Appellant Company to project that the lands purchased and sold by the parties are flood affected lands and situated at a long distance from the bottling plant. Vide Ext. 1 land measuring 1 bigha 4 chattaks was sold for a consideration of Rs. 2,000/- but DW 3 Premananda Nath admitted that the land is affected by flood and whenever there is no flood paddy is cultivated over the land. D.W. 4, Chitta Mohan Nath similarly sold land for Rs. 2,000/- stated that he was in urgent need of money and he sold the land which is low lying land and the land always remains under flood water and yields crops only when there is no flood. D.W. 5 Manik Lal Nath who sold 1 bigha 4 chataks of land in 1989 for Rs. 3,000/- stated in his cross-examination that his 9 land was flood affected land and during flood no cultivation was possible and it is at a distance of about 3 miles from the PWD road. He also makes it clear that the bottling plant is situated on highland and it is never affected by flood. The evidence of D.W. 6 Kedar Chetri is that the land he purchased for Rs. 3,000/- was actually mortgaged to him and that is why the price has been less and the land is at a distance of about 3 kms from the PWD road. DW 7 Samarendra Gowala who sold 1 bigha and odd of land at Rs. 3,000/- stated that the land is low lying land and always affected by flood. P.W. 8 Jitendra Mohan Nath stated that he sold 1 B 4 K 4 Ch. of land for Rs. 3,500/-. From the evidence of almost all the witnesses examined by the Appellant Company it is clear that the lands sold and purchased by them are flood affected and the lands are situated at a long distance from the acquired land which is sufficient to discard the sale deeds produced by the appellant before the referral court.
26. It was argued that the respondent could not produce comparable sale deeds of other tea gardens and due to this reason only sale deeds in respect of agricultural lands were produced. It was sought to be projected that the value of the tea garden land is much less than the value of the agricultural lands. The appellant also could not produce any comparable sale deed in respect of tea garden land. As a matter of fact, there was no sale deed available in respect of sale of tea estate at the material point of time. It productivity is taken into consideration the value of the tea estate land would be obviously more than the agricultural land situated nearby unless the contrary is proved. From the record it appears that the District Agricultural Officer, Cachar, Silchar, had access to some deeds referred to above and as produced by the respondents and according to the concerned officer, the annual income per bigha stands at Rs. 700/800. The learned referring Judge in his impugned judgment had reflected that the annual income multiplied by proper capitalization of twenty or fifteen years is done then the market value of the acquired land per bigha in the entire land would be Rs. 15,000/- and accordingly he assessed the valuation of the acquired land at Rs. 14,000/-. The appellant argued that multiplicand cannot exceed 10 and the District Agricultural Officer has made separate valuation in respect of "cha bagicha land" which would show that the return would come to Rs. 463/- and if the multiplicand applicable is applied, the valuation cannot exceed Rs. 5,000/-. Relying on the decision of the Apex Court in Special Land Acquisition Officer, 10 Davangere Vs. P. Veerabhadarappa and Ors., (1984) 2 SCC 120 appellant argued that when there is no evidence for computation of market value then the net return of the District Agricultural Officer in respect of "cha bhagicha" should be accepted. But in the referred decision it has clearly been held that normally the method of valuation by capitalization should not be resorted to where other methods are available. In Krishi Utpadan Mandi Samiti Vs. Malik Sartaj Wali Khan and Anr., (2001) 10 SCC 660, the Supreme Court has held that when there is other method of valuation, valuation by capitalization should not be resorted to.
27. In the present case so far as the sale deeds produced by the respondent No. 1 are concerned, they no doubt relate to small plots but the best price offered was one under sale deed Ext. 11 where the value of land per bigha has been shown as Rs. 38,200/-. Since sale deeds showing transaction of tea estate land could not be produced, the only option left for the court is to determine the compensation on the basis of the sale deeds of the agricultural lands situated in the vicinity of the acquired land. Mr. Chatterjee, learned counsel for the respondent No. 1, strenuously contends that since sale deeds showing land transactions of agricultural lands have been produced and proved, compensation has to be assessed on the basis of those sale deeds and in such a case the capitalization method of assessment cannot be resorted to. It is a matter of common knowledge that the valuation of tea estate land is higher than the agricultural land in the sense that there will be minimum thirteen to fourteen thousand tea bushes per one hectare and the production of tea per one hectare is above comparison with the production of paddy per one hectare of agricultural lands.
28. The learned counsel for the respondent No. 1 also relied on the decision of the Apex Court in Numaligarh Refinery Ltd. Vs. Greenview Industries and Anr., (2007) 9 SCC 242 to project that the value of the acquired tea estate land would be much higher than what has been awarded by the collector and enhanced by the referring court. In para 29 of the judgment the Supreme Court has held as follows :
" 29. The decision of the government to offer compensation @ Rs.55,000/- per bigha is not an isolated instance because in other districts as well a similar rate was offered. At least two such orders were produced before us which related to the districts of Dibrugarh and 11 Tinsukia. An all inclusive price of Rs.60,000/- per bigha was offered for tea class lands. The amount offered included the element of interest as well, and related to an earlier period namely the period before the year 1990 since the acquisitions/ take over in those cases related to the period prior to 1990. This certainly gives a clear picture as to the value of tea class lands in different districts of the State. The submission urged before us that the proximity of the lands in question was an important consideration cannot be over-looked. It is true that if there was evidence to prove that tea class lands were sold in the vicinity of the lands in question at a particular rate, the Court could not have ignored such sale transaction and the price paid. However, in the instant case, we are concerned with a tea garden. It was not disputed before us that such tea gardens are to be found in many districts of the State of Assam. Having regard to the fact that in the districts of Dibrugarh and Tinsukia compensation at the same rate was awarded, it appears that the value of tea class lands did not vary much on account of their location in different districts. The two instances relied upon by the appellant provides evidence to the effect that tea class lands in different districts, in the absence of special features, had the same value. These rates were fixed in the year 1992, only a few months before Notification under Section 4 of the Land Acquisition Act was issued in respect of the lands in question. The High Court rejected these valuations observing:-
"The price offered for lands in other districts may be a good piece of evidence, but the districts referred to i.e. namely Sibasagar and Dibrugarh are far away from Golaghat District. That apart, the price paid for the lands in those districts do not appear to have been tested in any court of law. The payment in those cases might have been on the higher side. We, therefore, order payment after recalculation at the rate of Rs.10,876/- per bigha as determined by the Collector".
We do not approve the approach of the High Court."
29. The above decision makes it amply clear that the value of the tea garden land is much higher than the agricultural land and Mr. Chatterjee, learned counsel contends that the value of the land assessed by the referral court is much less than what has been worked out by the Supreme Court in the above referred case.
30. Mr. K.N. Choudhury, learned senior counsel referred to the decision in H.P. Housing Board Vs. Bharat S. Negi and Ors., (2004) 2 SCC 184 to argue that when large area of land is acquired there must be a minimum deduction of 33 1/3 % towards development cost. In the present cases the sale deeds of agricultural land produced by the claimant was of the year 1984-88 while acquisition took place in June 1989 and as such the lands so sold would acquire more value at the time when tea garden lands were acquired and considered from that standpoint, deduction of 33 1/3 % would be unwarranted. Moreover, the value of the tea garden land is obviously higher than the 12 agricultural land and tea garden land has more productivity then the value of the agricultural land and in such circumstances when valuation of the tea garden land is made in comparison with the valuation of the nearby agricultural land deduction of 33 1/3% would definitely defeat the ends of justice. In Numaligarh Refinery case (supra) the Supreme Court observed that the value of tea garden land did not vary much on account of their location in different districts. It was argued that the lands in the aforesaid case were tea class lands of Sivasagar and Golaghat districts and cannot be compared with lands in Barak Valley district, but no such differentiation has been made by the Apex Court in the aforesaid judgment and it is discernible from the judgment that the value of the tea estate land is almost the same in all the districts of Assam.
31. There is no hard and fact rule that deduction should invariably be 33 1/3% in all cases and deduction may vary depending upon the fact situation in each case. In the present case, considering the developmental activities undertaken, I am of the view that deduction of 10% towards development would meet the ends of justice.
32. Mr. K.N. Choudhury, learned Senior Counsel also argued by referring to the judgment of the Apex Court in State of Haryana Vs Gurucharan Singh & Anr. etc. (1995) Supp.(2) SCC 630 that when compensation is determined by the collector or the court awarding compensation for the land as well as fruit bearing trees, cannot determine them separately and the compensation is to be determined on the basis of the value of the acquired land. The market value is determined on the basis of yield and then by necessarily applying suitable multiplier compensation needs to be awarded. The aforesaid decision has no application on the facts and circumstances of the present case. In these cases though the value of tea bushes, firewood etc and the value of land was determined by proper capitalization of twenty years, it has been deprecated by the Supreme Court. In Numaligarh Refinery Ltd. (supra) the Supreme Court approved valuation of tea bushes separately.
33. In the impugned judgment, the referral court valued tea bushes, firewood and Zirat separately and also determined the value of the land not only on the basis of annual income multiplied by proper capitalization of twenty years, but also considered the sale deeds of the adjacent lands. As I have discussed above 13 when sale deeds of the nearby agricultural land have been produced, the court should consider the value of the agricultural land situated in the vicinity of the acquired land and the capitalization method should be taken recourse to in view of the Apex Court in various cases referred to. In the case in hand, the claimants produced the sale deeds of the adjacent agricultural lands to discharge the burden and the learned referral court on consideration of the totality of the evidence on record, awarded compensation of Rs, 14,000/- (for bigger plot) per bigha and Rs. 5,000/- (for smaller plot), without any deduction towards development. After deduction of 10% towards development charges the modified compensation per bigha would be Rs. 12,600/- and Rs. 4,500/- respectively.
34. In the present case zirats etc were jointly inspected by the officials of both the parties and zirat list (Ext. 4) etc was prepared and as such same cannot be challenged in these appeals. Value of the tea bushes, firewood, trees etc fixed by the referral court appears to be justified and calls for no interference in these appeals.
35. Both the appeals are disposed of accordingly by awarding compensation of Rs. 12,600/- (for bigger plot) and Rs. 4,500/- (for smaller plot) per bigha with consequential benefits.
36. Send down the LCRs.
JUDGE arup