Gauhati High Court
Rezia Khatun Bibi vs The State Of Assam on 9 October, 2015
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
1. L.A. Appeal No. 21/2005
Rezia Khatun Bibi
W/O Abdul Hai
Resident of Village - Thakuranbari
P.S. Mancachar,
District : Dhubri, Assam
2. L.A. Appeal No. 22/2005
Jamal Sk.
S/O Lt. Alkai Uddin
Village - Thakuranbari,
P.O. & P.S. Mancachar,
District : Dhubri, Assam
3. L.A. Appeal No. 23/2005
Md. Abdul Jalil Sarkar
S/O Lt. Jaji Bahazuddin
Village : Thakuranbari,
P.O. & P.S. Mankachar,
District : Dhubri (Assam)
4. L.A. Appeal No. 24/2005
Rezia Khatun Bibi
W/O Abdul Hai
Resident of Village -Thakuranbari
P.S. Mancachar,
District : Dhubri, Assam
5. L.A. Appeal No. 25/2005
Smti Firoza Khatun
W/O Abdus Samad
Village - Thakuranbari,
P.O. & P.S. Mancachar,
District : Dhubri, Assam
6. L.A. Appeal No. 26/2005
Chand Mia
S/O Lt. Haji Bahazuddin,
Village - Thakuranbari,
Page 1 of 12
2
P.S. Mancachar,
District - Dhubri, Assam
7. L.A. Appeal No. 27/2005
Azizur Rahman,
S/O Lt. Mozibur Rahman
Village - Thakuranbari,
P.S. Mancachar,
District - Dhubri, Assam
- Appellants.
-versus-
1. The State of Assam,
Represented by the Collector,
Dhubri District, P.O. Dhubri.
R espondents
Advocates:
1. Mr. G.P. Bhowmik, Sr. Advocate,
2. Mr. Mouchumi Kalita, Advocate
- For appellants
1. Mr. Golap Sarma, G.A.
- For respondents.
BEFORE HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN Date of hearing : 22.09.2015 Date of judgment : 09.10.2015 JUDGMENT AND ORDER (CAV) 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 Page 2 of 12 3 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. 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 Page 3 of 12 4 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. 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.
Page 4 of 12 55. 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 (Chim anlal 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 m ake som e general observations. The com pulsion to do so has arisen as the trial court has virtually treated the aw ard rendered by the Land Acquisition Officer as a judgm ent under appeal and has evinced unaw areness of the m ethodology for valuation to sam e ex tent. The true position therefore requires to be capsulized.
4. The follow ing factors m ust be etched on the m ental screen:
(1) A reference under Section 18 of the Land Acquisition Act is not an appeal against the aw ard and the court cannot take into account the m aterial relied upon by the Land Acquisition Officer in his aw ard unless the sam e m aterial is produced and proved before the court.
(2) So also the aw ard of the Land Acquisition Officer is not to be treated as a judgm ent of the trial court open or ex posed to challenge before the court hearing the reference. I t is m erely an offer m ade by the Land Acquisition Officer and the m aterial utilised by him for m aking his valuation cannot be utilised by the court unless produced and proved before it. I t is not the function of the court to sit in appeal against the aw ard, approve or disapprove its reasoning, or correct its error or affirm , m odify or reverse the conclusion reached by the Land Acquisition Officer, as if it w ere an appellate court.
(3) The court has to treat the reference as an original proceeding before it and determ ine the m arket value afresh on the basis of the m aterial produced before it.
(4) The claim ant is in the position of a plaintiff w ho has to show that the price offered for his land in the aw ard is inadequate on the basis of the m aterials produced in the court. Of course the m aterials placed and proved by the other side can also be taken into account for this purpose.Page 5 of 12 6
(5) The m arket value of land under acquisition has to be determ ined 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 determ ination has to be m ade standing on the date line of valuation (date of publication of notification under Section 4) as if the valuer is a hypothetical purchaser w illing to purchase land from the open m arket and is prepared to pay a reasonable price as on that day. I t has also to be assum ed that the vendor is w illing 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 :-
" W hile considering the m arket price of land on the basis of the m arket value of com parable lands fairly prox im ate to the relevant date, the court necessarily ascertains the m ark et price of adjacent lands possessing sim ilar advantages. Although in a strict sense it m ay not be said to be an inter-parte decision but, one of the m ain functions of the Court involves ascertainm ent of the m ark et price of adjacent lands sim ilarly situated on the date of the Notification. Such an aw ard, therefore, cannot be said to be the determ ination of the m ark et price of the acquired land only as it also determ ines the m ark et price of com parable lands adjacent to the lands at the relevant date. Apparently it m ay be a determ ination of m arket price of the acquired land but in fact the Court decides and determ ines the m arket price of the adjacent lands, possessing sim ilar 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 ex periences of life. As Judges of fact, it w as open to the appellant Judges to test the evidence placed before them on the basis of probabilities .
Page 6 of 12 74) 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 R eference under Section 18 of the Act is not an appeal against the aw ard and, therefore, the Court cannot take into account the m aterial relief upon by the Collector in his aw ard, unless such m aterials are produced and proved before the Court. The R eference Court is to treat the reference as an original proceeding before it and determ ine the m arket value afresh on the basis of the m aterials produced before it. I n the Reference proceeding, the claim ant is in position of a plaintiff, w hose burden is to show that the price offered for his land in the aw ard is inadequate, by placing sufficient m aterials before the Court to arrive at such a decision. The R eference Court, how ever, is also required to tak e into consideration the m aterials placed and proved by the other side, nam ely the Collector or the requiring departm ent, w hile ascertaining the m arket value and passing an aw ard in a reference m ade 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 Page 7 of 12 8 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 docum ent registered under the registration Act, 1908 (16 of 1908) including a copy given under Section 57 of the Act m ay be accepted as evidence of transaction recorded in such docum ents.
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 :-
" I N THE COURT OF DI STRI CT JUDGE :::::::::: DHUB RI M isc. (L.A.) Case N o.218/ 02 Rezia K hatun Vs. The Collector, Dhubri W ritten objection of the Opp. P arty :
1. That, the petition is not m aintainable.
2. That, the reference petition is tim e barred.
3. That, the statem ents m ade in para 1 & 2 of the petition are not true as per record.
4. That, the aw ardee has accepted the com pensation w ithout any protest.
5. That, the statem ents m ade in para 3(a) are denied. The m arket value of the land w as assessed properly on the basis of the sale deeds of 1992 to 1996 of village Thakuranbari @ Rs.19,900/ - per bigha.Page 8 of 12 9
6. That, as regards the contents of para 3(b) of the petition it is subm itted that there w as one No. Of Sim ul tree, 15 Nos.
Of M ander Trees and 2 nos. of Am ita trees at the tim e of acquisition and R.61 0.00 has been paid for those trees. There w ere no bam boo and Banana trees found at the tim e of preparing Zirat List.
7. That, after acceptance of the aw ard w ithout protest the subsequent claim of the petitioner by filing the reference petition is not m aintainable.
Therefore, it is prayed that your honour w ould be pleased to reject the petition w ith cost.
VERI FI CATI ON I , Sri N.F.H. Hussain, L.A.O., Dhubri do hereby solem nly affirm and declare that the above contents of the w ritten objection are true to the best of m y know ledge, belief and inform ation and I sign this verification on this 9 th day of M ay/ 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. 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 Page 9 of 12 10 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 determ ine the m arket 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 sam e or sim ilar potentialities or fertility or other advantageous features w ould furnish basis to determ ine just and fair m arket value on the prem ise of a hypothetical w illing vendor and w illing vendee. The w illing vendor w ho w ould offer the land and w illing vendee w ho w ould agree to purchase the land as a prudent m an in norm al m arket 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 betw een w illing vendor and vendee then it m ay be considered but reasonable m argin m ust be given in fix ing w holesale price. The sale and purchase of lands at a throw aw ay price at arm 's length or depressed sales or façade of sales brought into existence in quick succession to inflate the m arket value w ould not offer any basis to determ ine just m arket value. In order to adjudge w hether sales are bona fide sales betw een w illing vendor and w illing vendee and w hether the consideration m entioned in the deed w as, in fact and really passed on under transaction; w hether the lands covered by sale deeds and relied on, possessed of sam e or sim ilar potentialities or fertilities or advantageous features Page 10 of 12 11 w ould be brought on record only by exam ining the vendor or the vendee or if neither of them is available, the attesting w itness w ho has personal know ledge of the bargain and passing of the consideration are m andatory. Every endeavour w ould be m ade to fix fair and reasonable m arket 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. R am Reddy v. Hyderabad Developm ent Authority; 1995 2 SCC 305 , which relevant paragraph, is quoted as below :
"8. M arket value of the land under the L.A. Act is the m ain com ponent of the am ount of com pensation aw ardable for such land under Section 23(1) of the L.A. Act. The m arket value of such land m ust 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 K rishi Utpadan M andi Sam iti Sahasw an v. Bipin K um ar & 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 M iki , His sons , it has also been held by this Court, that "Sale Page 11 of 12 12 Deeds w hich have been executed w ithin a reasonable tim e from the date of notification, w hich are bona fide transactions of land, situated nearby the acquired land and having sim ilar advantages, can safely be relied upon by the reference Court for calculating the fair m arket 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. 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.
18. Return the LCRs.
JUDGE ISINGH Page 12 of 12