Gauhati High Court
Raja Bhairabendra Narayan Bhup vs Collector Of Goalpara At Dhubri on 18 February, 1986
Equivalent citations: AIR 1987 GAUHATI 51
Author: K.N. Saikia
Bench: K.N. Saikia
JUDGMENT Lahiri, J.
1. Caveat Litigants --Litigants Beware Thou shalt suffer for thy sin! The respondent was happy as the tiny appeal pended before this Court. He was never up and doing, did not ask for expeditious hearing of the appeal Under Section 54 of the Land Acquisition Act dispensing the formalities of the preparation of the paper book nor did he pray for early hearing. Now the respondent is bound to suffer under any circumstances, no matter whether the appeal is allowed or dismissed. Now, "Judicial Justice" has struck him in view of the law laid down by the Supreme Court in Bhag Singh v. Union Territory of Chandigarh, AIR 1985 SC 1576, the respondent is to pay enhanced solatium @ 30% of the market value and redoubled interest @ 15% per annum in terms of the provisions contained in the Land Acquisition (Amendment) Act, 1984. So, the delay is bound to enburden the respondent but the ultimate sufferers are the little Indians, as the respondent shall pay from the people's exchequer! Insofar as the appellant is concerned the money value has gone down, may not be to its Nadir! Even if the appellant succeeds it will not be on a par with the amount of compensation he would have received long 11 years back. So, the delay has caused injustice to both the parties. We, therefore, exhort all who are directly and indirectly connected with litigations to ask for early hearing of the cases pending before the Courts and allow the Courts to dispense judicial justice and partly relieve themselves the burden of old pending litigations in the dockets of the courts. It is perhaps the prime duty of the learned members of the noble profession to see that old causes are expeditiously disposed exacting early disposal of the cases. The litigants have suffered. We feel for them. But the time will speak who are responsible for the delay and causing miseries to the litigants! We proceed to dispose the appeal today and right now.
2. The relevant facts necessary for disposal of the appeal :
A small parcel of land measuring 4 bighas 2 kathas 15 lechas was acquired by the Collector, Goalpara for the construction of a police Out Post with staff quarters at Krishnai, a township in the district of Goalpara under the Land Acquisition Act, 1894, for short "the Act". The Notification Under Section 4(1) of "the Act" was issued on 17-3-1966, which is the relevant date for our purpose. The Collector determined the market value of the land at the rate of Rs. 2,500/- per bigha on the basis of his subjective satisfaction and he troubled not to collect any contemporaneous sale deed to determine the market price of the land at the relevant date. Being aggrieved by the award of the Collector, the appellant asked1 for and obtained a reference Under Section 18 of "the Act" claiming market value of the land at the rate of Rs. 10,000/-per bigha. The claimant examined 5 witnesses and proved 4 sale deeds. The Collector examined one witness, produced a note marked Ext. 'Ka' describing the area of the acquired land as well as the nature of the houses standing thereon and a sketch map of the acquired land. Learned Judge having held that the award of the Collector had no basis or foundation but upheld it on the score that he did not find any material to hold that the claimant was entitled to further compensation and dismissed the reference with costs against the claimant. Learned Judge held that the sale deeds were in respect of the better class of lands than the acquired land, the acquired land was 'bhit' land whereas the Sands in the sale deeds produced by the claimant were of "Chandina class". Learned Judge assumed that Chandina lands were better lands and fetched more price. Learned Judge rejected the sale deeds mainly on the grounds that they were not in respect of comparable lands and dismissed the claim of the appellant. Hence the appeal.
3. The connotation of the terms 'Compensation' and 'market value' and the recognised scheme for the determination of market value :
The key to the word 'compensation' is found in Section 23 of "the Act". The 'market value' on the basis of which compensation is payable under Section 23 means that price which a willing purchaser would pay to a willing seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities when laid out in the most advantageous manner excluding of course, any advantage due to the carrying put of the scheme for the purpose for which the property is acquired. The term 'market value' has acquired a definite connotation by the decisions of the Supreme Court. The method of valuation cannot be exact as it is the estimate based more or less on a guess work. The land has to be valued not only with reference to its condition at the time of declaration under Section 4 of the Act but its potential value should also be taken into account. The market value to be estimated must be the value of that land in the open market which a willing seller might be expected to realise. It is generally ascertained on a consideration of the price obtained by sale of adjacent lands with similar advantages. It is one of the methods of valuation. The market value may be ascertained on the basis of : (i) the opinion of experts; (ii) the price paid within a reasonable time in bona fide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages, and, (iii) a number of years' purchase of the actual or immediately prospective profits of the lands acquired. However, these are not exhaustive but illustrative cases. The Court is required to arrive as near as possible at estimate of real market value. The Court may choose one method or even two or all the methods to determine the true and correct valuation of the land. The market value is to be estimated not merely by existing use of the land but by the best use to which a willing purchaser would put it. These principles are culled from (1) South Eastern Railway Company v. London County Council, (1915) 2 Ch 252; (2) Special Land Acquisition Officer v. T. Adinarayan Setty, AIR 1959 SC 429 (430); (3) Raghubans Narain Singh v. U. P. Government, (1967) 1 SCR 489 : AIR 1967 SC 465 (467); (4) State of Gujarat v. Vakhatsinghji Vajesinghji Vaghela, AIR 1968 SC 1481; (5) Radhakishan Laxminarayan v. Collector of Akola, (1968) 1 SCWR 692 : 1968 SCD 647; (6) Sri Rani M. Vijayalakshamamma Rao Bahadur v. Collector of Madras, (1968) 2 SCJ 869; (7) Tribeni Devi v. Collector of Ranchi, AIR 1972 SC 1417 : (1972) 3 SCR 208; (8) Union of India v. Ram Mehar, AIR 1973 SC 305 : (1973) 2 SCR 720; (9) Dollar Company v. Collector of Madras, AIR 1975 SC 1670; (10) State of West Bengal v. Shyamapada, AIR 1975 SC 1723; (II) Thakur Kanta Prasad Singh v. State of Bihar, AIR 1976 SC 2219; (12) Land Acquisition Officer, City Improvement Trust Board v. H. Narayanaiah, AIR 1976 SC 2403; (13) Prithvi Raj Taneja v. State of M.P., (1977) 1 SCC 684 : (AIR 1977 SC 1560); (14) Collector of Raigarh v. Dr. Harisingh Thakur, (1979) 1 SCC 236 : (AIR 1979 SC 472); (15) Raja Srivalgoti Sarvagna Kumar Krishna Yachandra Bachadurvaru v. Special Land Acquisition Officer, (1979) 4 SCC 356 : (AIR 1979 SC 869). In Shyamapada (supra No. 10) the Supreme Court has observed "that while the classification for revenue purposes might have its own rationale, it is not uncommon to find that land which has a lower classification for revenue purposes fetches a higher price in the market". Indeed, lands of lower classification contiguous or adjacent to commercial or industrial area, undoubtedly fetch price at par with commercial lands. Similarly, lands having lower classification but used and utilised to fetch lucrative end product fetch high price. The situation of the land, its utilization, its potential or latent value are the relevant factors, the label or classification for revenue purposes may not be the true criterion for determining the market value of the land.
4. We, proceed to consider whether the market value of the land at Rs. 2,500/- per bigha as awarded by the Collector and affirmed by learned Judge was the correct valuation or Rs. 10,000/- per bigha should be the market value of the land as claimed by the appellant-claimant. This apart, there are other subsidiary contentions which we shall deal in due course. Admittedly, there was absolutely no basis for determining the market value of the land in the award of the Collector. He did not follow any of the recognised methods spelled out, notwithstanding the command of the Supreme Court that it is the duty of the State or Federal Government in the conduct of the inquest by which compensation is ascertained to see that it is just, not merely to the individual whose property is taken but to the public which is to pay for it -- vide Dollar Company (supra No. 9). Irresponsible determination of market value invariably creates further litigation and further expenditure of money from the exchequer of the people. The command-cum-message of the Supreme Court to perform the social duty and to dispense administrative justice must be religiously followed by the officers of the Governments, otherwise firm action by way of awarding Cost, against the particular officer in the form of compensatory cost may be awarded by the Court. We can no longer allow social injustice to go unpunished.
5. In support of the claim, the claimant produced 4 sale deeds. The relevant data whereof are furnished hereinbelow :
Ext. No. Date of sale deed Area of land Cost Classification of land
1) Ex. 1 15-2-66 1 K. 2 Ls. with houses Rs. 8000/-
not specifically stated but it is a home-stead land
2) Ex. 2 14-9-66 6 Ks. 10 dhurs Rs. 5000/-
'Chandina' and measurement specifi-cally stated to be according to Estate measurement i.e. Zamindari mea-surement
3) Ex. 3 12-5-59 4 Ks. 4 dhurs Rs. 3000/-
Not set out in the deed
4) Ex. 4 25-6-54 I K. Rs. 2000/-
Chandina Bhit land All the lands covered by the sale deeds are of Krishnai town at or near the Krishnai market, about one to l 1/2 furlong away from the acquired land. The notification Under Section 4(1) was issued on 17-3-1966, which is the relevant date for determining the market value of the land. The acquired land measures 4 bighas 2 kathas and 15 lechas in a compact block by the side of the National High Way with a passage running in front of it, vide Ext. 'Kha', the sketch map. The land belonged to the claimant and it was classified as 'Bhit land'. On the land there was a C.I. sheet roofed house with pucca plinth, Kachahari house (Court house), kitchen with fruit bearing trees in the compound having a well. It is thus seen that it was a 'Bhit' land where the Zamindar held his Court. There was a dwelling house for the Nayab of the Estate. It is a common knowledge that the measurements of the lands as well as the classification made during the Zamindari rule were totally different from those prevailing in the rest of Assam. The land was acquired after the acquisition of the Zamindari and the classification of the land was described as 'Bhit' land'. The meaning of the expression 'Bhit land' is to be found in the Introduction to the Assam Land and Revenue Manual, by Sir William Wart at page cxvii. 'Bhit land' means homestead land, contra arable lands. Bhit land is high land suitable and appropriate for construction of houses. Under the Zamindari system lands fit for construction of houses or homestead land were described as 'Chandina' land. We also find from the evidence of the witnesses that 'Chandina lands' were lands fit for construction of houses and shops. Neither Chandina nor Bhit land is low land. Both are suitable for construction of houses and shops. Further, we must recall that the acquired land was of the Zamindar and, the Zamindar had selected the best available in the area for his Court House. The Court house had attached garden, and garden house. It is difficult for us to accept that zamindar could have chosen an inferior land for holding his Court during his time.
6. P. W. I, Paramananda Sarkar stated that the acquired land was by the side of the National High Way and about a furlong off from Krishnai Bazar. It was Raja's Court building. He said that the acquired land was far better than the lands covered by Exts. 1 to 4. He stated that the price per bigha of similar land was within the range of Rs. 15,000/- to 20,000/- per bigha during 1965, 1966 and 1967. There was no cross-examination of the witness regarding the quality of the land as described by him. P. W. 2, Jyosh Chandra Basu, who proved Ext. 1, said that the acquired land was about a furlong away from the land purchased by him by Ext. 1. He said that Krishnai market was about a furlong from the acquired land. In cross-examination he said that the market value of the acquired land would be about Rs. 10,000/-to 15,000/-per bigha. P.W. 3, Purendra Narayan Choudhury, a Government servant has proved Ext. 2. He has stated inter alia, that the acquired land was about a furlong away from Ext. 2 land. He stated that the price of lands was gradually increasing at Krishnai. He said that the development works at Krishnai started from 1965. P.W. 4, Sachindra Nath Bose, stated inter alia that he was a resident of Krishnai since 1947. He is a businessman. The acquired land was about a furlong away from the house. The acquired land was by the side of the National High Way. He said inter alia that the land purchased by him was not agricultural land but Sandina land, land for business purpose. He said that since he purchased the land the price increased by about 30 to 40 per cent. He stated that the "acquired land stands in good locality' than my land". He denied that the acquired land was not Sandina land. P.W. 5, Sankar Chandra Bose, stated that Krishnai was a business centre and much more developed than the then Sub-Divisional Head Quarter i.e., Goalpara town. He said that he purchased Ext. 4 land in 1954. He stated that his land was a furlong from the acquired land and both the lands were of similar nature and quality. He denied that the acquired land was not Sandina land. Collector' witness No. 1 is the Supervising Kanungo of the Land Acquisition Branch. He stated, inter alia, that the acquired land is a 'bhit' land and it was situated by the National High Way. He made a statement that there is a difference between Sahdina land and Bhit land but did not state where lay the difference. In cross-examination he could not say what was the classification of land during the Zamindari period. He admitted that Krishnai was a business centre which was gradually expanding and in turn the value of lands increased but he could not say positively as to whether the value of lands ranged between Rs. 14,000/- to 15,000/- per bhiga in 1962. It is thus seen that the witnesses for the claimant have stated that the acquired land was better or at least not inferior to the lands purchased by them. The witness for the Collector made an endeavour to show that there was a difference between Sandina and Bhit land but could not say what was the difference. Naturally two different nomenclatures are given for high land fit for constructing houses etc. and that was the difference. In our opinion, the zamindar had chosen the best available land at Krishnai. It was a high land with standing houses near the National High Way as well as proximate to Krishnai bazar. Naturally, a willing purchaser would have put it to best use by purchasing Raja's property. As such, we do not find any difference in quality of the lands. In our opinion, the classification for the revenue purpose cannot be the criterion to decide that Chandina land fetched higher price in market than 'Bhit lands'. In our opinion, it was the best land in the area chosen by the zamindar. In our opinion, learned Judge made a mistake in assuming that the classification made by the Zamindari Estate, describing lands as Chandina automatically meant that those were better lands than 'Bhit lands' i.e., homestead lands. It is common knowledge that during the British rule the Zamindars constructed their palaces, out-houses, garden houses and Court halls in the best possible locations. It was a common striking feature throughout India during British Rule. We, therefore, find no material to support the finding of learned Judge that the zamindari classification of Chandina and/or Chandina Bhit was on the basis of quality of lands or that Sandina land was in any way superior to Bhit land or homestead land as classified in the rest of Assam. Learned Judge was wrong in assuming that Chandina land was superior to homestead land. It appears that at best lands fit for construction of houses or shops were styled as Chandina land. Even if we assume that Chandina land meant 'land situated in commercial or trading area' where shops or houses could be constructed, we find that the acquired land had all the requisite qualities and/or potentialities to fetch at least price at par with Chandina land. The acquired land was the best land, whereon stood the Court house of the zamindar. It is proximate to Krishnai Bazar. It was high land and had immense potential value. Relying on Shyamapada (AIR 1975 SC 1723) (supra No. 10) we hold that the classification of the land for revenue purpose cannot be the determinative factor to award lesser compensation. A land having lower classification may fetch higher price. The witnesses testified that the acquired land was better than their own Chandina lands. Even the witness for the Collector could not say why Chandina land was superior to Bhit land.
7. For the foregoing reasons we hold that the acquired land and the lands covered by Exts. 1 to 4 are comparable lands and proximate to the acquired land. We are constrained to hold that the opinion expressed by learned Judge that Chandina land was superior to Bhit land has had no basis. As such, we proceed to decide the market price of the land relying on the comparable lands in Exts. 1 to 4.
8. It will be seen from the data furnished in para 5 of the judgment that by Ext. 4 1k. of land was sold at Rs. 2000/- on 25-6-54 i.e. @ Rs. 200 - per katha. By Ext. 3, 4 kathas 4 dhurs of lands were purchased on 12-5-59 at Rs. 3,000/- i.e. @ Rs. 750/- per katha. On 15-2-66 1 Katha 2 lechas of land was purchased at Rs. 8,000/- vide Ext. 1 along with an existing house. The relevant date for the purpose of ascertaining the market value is 17-3-66, the date of the issuance of notification Under Section 4 of 'the Act'. In our opinion, Ext. 1, dt. 15-2-66 cannot be used for the purpose of determining the market price of the acquired land as the price includes the value of the standing house. We do not find what was the price paid for the house to determine the market value of the land. Similarly, Ext. 4 is of 1954 and accordingly the same cannot be a contemporaneous document to determine the market price of the land acquired in 1966. However, we find that Exts. 2 and 3 dated 14-9-66 and 12-5-59 are contemporaneous. Vide Ext. 3 dated 12-5-59, 4 kathas 4 dhurs of land was purchased at Rs. 3,000/- i.e. the rate was around Rs. 750/- per katha and vide Ext. 2, 6 kathas 10 dhurs of land was sold at Rs. 5,000/-on 14-9-66 i.e., @ 800/- per katha. We, therefore, find that the price of the land at Krishnai Bazar was @ Rs. 750/- to 800/- per katha between 1959 and 1966. On a bare perusal of Exts. 2 and 3, it is found that the measurements were recorded in the sale deed according to the Estate measurement. The witnesses also stated to the said effect. 20 dhurs of land measured one katha and 20 kathas measured one bigha during the Zamindari rule. The use of the measurement 'dhur' is the sure guide to hold that the measurements were according to the Zamindari system. In the rest of Assam, 20 lechas make 1 katha and 5 kathas make one Bigha. The area covered by one bigha of land under both systems was the same. However, 5 kathas of Zamindari land was equivalent to 1 standard katha in Assam. Accordingly, we find that one katha of land according to Zamindari measurement was sold at Rs. 750/-to 800/- per katha which is 1/5th of Standard Katha in the rest of Assam. The market value of land as such, according to Assam measurement was Rs. 3,750/- to 4,000/- per katha i.e. Rs. 18,650/- to 20,000/- per bigha between 1954 to 1966. There is no dispute that the land sold vide Exts. 2 and 3 were according to the old Zamindari measurements. The witnesses have stilted so. The documents show that the expression 'Dhur', which is or was never in use in the rest of Assam, have been used to denote that the measurements set out in Exts. 2 and 3 were according to Estate measurement. There is also no dispute that the acquired land measured 4 bighas 2 kathas 15 lechas. Admittedly, it was according to the standard Assam measurement as the term "lecha" is or was never used in Zamindari system of measurements.
9. In the result, we reach the conclusion that the market value of proximate land, between 1959 and 1966, was in the range of Rs. 18,650/- to Rs. 20,000/- per bigha. However, the appellant has claimed the market value of the acquired land at Rs. 10,000/- per bigha. The lands purchased by Exts. 2 and 3 were in respect of the land almost within the market and the acquired land is about 1 to 1 1/2 furlong away from the market place. We have also considered the weighty submission of Mr. D. P. Chaliha, learned Government Advocate, Assam, that the lands described in Exts. 2 and 3 were tiny plots measuring 1/5th katha and/or one standard katha, whereas the acquired land is about 5 bighas. In our opinion, it is also a relevant consideration to assess the market value of the acquired land. We hold that the reasonable market value of the acquired land was Rs. 9,000/- per bigha. Accordingly, upon setting aside the impugned awards of the Collector and the learned Judge we award market value of the acquired land at the rate of Rs. 9,000/- per bigha.
10. Further, on the authority of Bhag Singh v. Union Territory of Chandigarh, AIR 1985 SC 1576 we hold that the provisions of the Land Acquisition (Amendment) Act, 1984 enhancing the rate of solatium and interest are squarely applicable in the instant case. Following the decision of their Lordships we award that the petitioner shall be entitled to 30% of the solatium on the market value of the land as provided in 'the amending Act'. We also find that the provisions of Section 28 enjoins payment of interest @ 9% per annum from the date on which possession was taken and if the payment is not made within a year, the Court should award interest @ 15% per annum. Accordingly, we direct that the respondent shall pay to the appellant-claimant interest @ 9% per annum from the date of taking over possession of the land on the market value of the land; and if the market value of land has not been paid within one year from the date of taking over of the possession of the acquired land the claimant shall be entitled to compensation @ 15% per annum for the whole or part of the market value of the land. In Collector of Sibasagar v. Mohan Chandra Bordoloi, F.A. No. 4/74 decided on 29-11-85 a Division Bench of this Court awarded higher rate of solatium and interest as ruled by the Supreme Court in Bhag Singh (supra). The Bench also directed the claimant-appellant to pay deficit amount of Court-fees within 2 months from the date of drawal of appellate decree on the enhanced amount of interest and solatium. We took this position in view of similar direction issued by their Lordships in Bhag Singh (supra) vide, ultimate paragraph of the judgment. However, if the deficit Court-fee is not paid within 2 months from the date of drawal of the appellate decree the award of solatium of 30% and higher rate of interest shall not be payable to the appellant. We feel that the fair order of cost will be directing both the parties to bear their own costs as both are equally negligent in prosecuting the appeal.
11. In the result, the appeal is allowed.