High Court
Case Details
LA.App. 33/2002 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (Oral) These appeals are directed against the judgment and award dated 25th January, 2002 passed by the learned District Judge, Hailakandi in Misc. (L. A.) Case No.4/1993 arising out of L.A. Case No.1/1989 awarding compensation for acquisition of the land belonging to M/s Chandipur Tea Estate. [2] L.A. Appeal No.33/2002 has been filed by the requiring departmen t, namely, Oil & Natural Gas Corporation Limited (in short, (cid:28)ONGC (cid:29)), challenging the quantum of compensation awarded by the reference Court in the aforesaid ref erence proceeding. Chandipur Tea Estate, which was the owner of the land acquir ed, has preferred L.A. Appeal No.34/2002 for enhancement of the compensation, aw arded by the reference Court. [3]
Legal Reasoning
Land measuring 27 Bighas 5 Kathas 7 Chataks under 2nd R.S. Patta No.4/3 Dag Nos.147 and 156 of Mouza: Chandipur Grant under Phargona Saraspur be longing to Chandipur Tea Estate was acquired by the Collector, Hailakandi for a public purpose, i.e. for drilling by the ONGC, by issuing notification under Sec tion 4(1) of the Land Acquisition Act, 1894 (in short, (cid:28)the Act (cid:29)) and declaratio n under Section 6 of the said Act, on 2nd June, 1989 and 24th April, 1990, respe ctively. The Collector has passed the award on 15th September, 1990 awarding co mpensation for the land @ Rs.9,300/- per Bigha and @ Rs.12/- for big size tea b ushes; Rs.5/- for medium size tea bushes and Rs.3/- for small size tea bushes. There is no dispute that the number of tea bushes on the acquired land was 26500 . M/s Chandipur Tea Estate, the owner of the acquired land, being not satisfied with the quantum of compensation awarded, filed an application under Section 18 of the said Act requesting the Collector to refer the matter to the reference C ourt and accordingly, reference was made, on the basis of which Misc. (L.A.) Cas e No.4/1993 was registered in the Court of the learned District Judge, Hailakand i. The said reference was initially answered vide judgment and awar [4] d dated 12th December, 1994, which, however, was set aside by the High Court and remanded the said reference for fresh decision, on the basis of the appeal file d by the ONGC, as the requiring department was not heard before passing such jud gment and award. At the initial stage, the claimant, namely, the owner of the a cquired land, examined one witness, namely, the Manager of the Tea Estate, who, however, was not cross-examined. On remand, the said witness was reexamined and also cross-examined by the ONGC. Another witness was also examined by the ONGC in support of their stand taken in the objection filed in the reference proceed ing. The claimant in support of the claim of Rs.25000/- per Bigha in respect of the land value and Rs.60/- per tea bushes, has also proved 4(four) documents, n amely, a certificate issued by the In-charge Assistant Settlement Officer, Algap ur Circle, Hailakandi dated 28th September, 1994 (Exhibit-1) certifying that no valuation certificate in respect of Chandipur Grant could be issued, there bein g no sale instances of the tea garden land in the said district and that the val ue of the land in the adjacent villages, namely, Dhalidahar and Dhalidha Grants, would be Rs.15,000/- approximately per Bigha; the certified copy of a registere d sale deed dated 7th January, 1988 transferring 18 Kathas 3 Chataks of land in Dhahidahar Mouza at Rs.13,000/- (Exhibit-2); certified copy of the registered sa le deed dated 1st May, 1987 transferring the land measuring 11 Kathas 1 Chataks 17‰ Gandas under Bhatirkupa Mouza for Rs.11,500/- (Exhibit-3) and a sketch map p repared by one Akaddas Ali Laskar, a retired Patowary (Exhibit-4). The ONGC ha s also proved a number of documents being Exhibit-A, Jirat list; Exhibit-B, the gazette notification relating to the acquisition of land belonging to another te a garden, namely, Madanpur Tea Estate; Exhibit-C, the value of the trees mention ed therein; Exhibit-D, the document indicating acquisition of the land in respec t of another garden, namely, Pathimara Tea Estate; Exhibit-E, the list of Jirats and Exhibit-F, the sketch map prepared by the revenue authority in respect of t he land under occupation of the ONGC. [5] The reference Court on appreciation of the evidences adduced pas sed the aforesaid judgment and award, enhancing the market value of the acquired land from Rs.9,300/- per Bigha to Rs.14,000/- per Bigha, taking into account th e Exhibit-2 sale instance and also enhancing the compensation for the tea bushes to Rs.25/- per bush, irrespective of their ages. Hence, the present appeals. [6] I have heard Mr. D. Chakraborty, learned counsel for the appella nt in LA Appeal No.33/2002, who is also appearing for the respondent No.2/ONGC i n LA Appeal No.34/2002, Mr. Bora, learned counsel appearing for the appellant in LA Appeal No.34/2002, who also appears for the respondent No.1 in LA Appeal No. 33/2002 and Mr. Sen Deka, learned State counsel appearing for the Collector in b oth the appeals. Referring to Exhibits-2 and 3 sale instances, as proved by the c [7] laimant, Mr. Chakraborty, learned counsel appearing for the ONGC has submitted t hat neither the vendor nor the vendee or the scribe of the said sale deeds havin g been examined by the claimant in support of execution of the sale deeds, those are not admissible in evidence for the purpose of ascertaining the market value of the land acquired. The learned counsel in support of such contention has pl aced reliance on a decision of the Apex Court in Special Deputy Collector & Anr. Vs. Kurra Sambasiva Rao reported in AIR 1997 SC 2625. [8] It has also been submitted by the learned counsel appearing for the ONGC that even if Exhibit-2 and Exhibit-3 are admissible in evidence and can be taken into consideration for determination of the market value, there being no evidence on record to demonstrate that the land transacted by such sale trans actions are in the vicinity of the acquired land, those sale deeds are not relev ant for the purpose of ascertaining the market value of the acquired land. It h as also been submitted that even if Exhibit-4 sketch map introduced by the claim ant in the reference proceeding is taken as admissible, it is apparent therefrom that the sale instance vide Exhibit-3 is not relevant, there being no indicatio n at all in the said sketch map that Bandar Basti-II Grant is within the vicinit y of the land acquired. According to the learned counsel, it is also evident fr om the said sketch map that the land transacted vide Exhibit-2 sale instance is also not in the vicinity of the acquired land and hence, the reference Court oug ht not to have placed reliance on Exhibi-2 and Exhibit-3 sale instances in deter mining the land value of the acquired land. The learned counsel further submits that since the claimant has claimed more compensation than what has been awarde d by the Collector, the burden lies on the claimant to prove, which the claimant having failed to do, the reference Court ought to have dismissed the reference proceeding, in so far as it relates to the claim of the land value of the acquir ed land. [9] Mr. Chakraborty, learned counsel, referring to the judgment and award passed by the reference Court in relation to the award of compensation of Rs.25/- per tea bush has also submitted that though the reference Court has foun d that the claimant could not adduce any evidence to substantiate their claim of Rs.60/-per tea bush, it has, in a most arbitrary manner, without any justificat ion has fixed the compensation for the tea bush @ Rs.25/- each. The learned cou nsel, however, has fairly submitted that in the absence of any material, Krishna murthi formula for ascertaining the value of the tea bush has to be adopted. [10] On the other hand, Mr. Bora, learned counsel appearing for the c laimant/Chandipur Tea Estate, in both the appeals, has submitted that the refere nce Court ought to have awarded Rs.25,000/- per Bigha, as the land value for the acquired land and Rs.60/- per tea bush for 26500 tea bushes grown over the acqu ired land. According to the learned counsel, it is evident from the Exhibit-2 a nd Exhibit-3 sale deeds, which are the certified copies of the sale instances an d as such is admissible in evidence under the provisions of Section 51-A of the Act, that by such sale deeds lands were sold @ around Rs.20,000/- per Bigha. It has also been submitted that since those sale transactions pertain to the year 1987-88, and there being appreciation of the land value, the reference Court oug ht to have fixed the land value as Rs.25,000/- per Bigha for the acquired land. Mr. Bora, learned counsel referring to a decision of a constitutional Bench of the Apex Court in Cement Corporation of India Limited Vs. Purya & Ors. reported in (2004) 8 SCC 270 has submitted that there is no requirement of examining eith er the vendor or vendee or the scribe of the sale deeds, which are produced by t he claimant in support of the claim for enhancement of the compensation, to prov e the said sale transactions. It has also been submitted that the decision of t he Apex Court in Kurra Sambasiva Rao (supra) has been held to be not a good law, in view of the provisions contained in Section 51-A of the said Act. [11] The learned counsel, in so far as it relates to the compensation awarded for the tea bushes, submits that the Government having accepted the Kri shnamurthi formula for ascertaining the costs of the tea bushes, the claimant is entitled to Rs.35.50 per tea bush and as such, the reference Court ought to hav e awarded the said amount for the tea bushes grown over the acquisitioned land. [12] Mr. Sen Deka, learned State counsel appearing for the Collector submits that the award was passed by the Collector based on the sale instances a vailable at the relevant point of time and also the report submitted by the conc erned authority relating to the value of the tea bush. According to the learned State counsel, the reference Court, in view of the same, ought not to have enha nced the compensation. Mr. Sen Deka, however, has submitted that in the absence of any other materials on record, Krishnamurthi formula would be applicable for the purpose of ascertaining the compensation for tea bushes. [13] I have considered the submissions advanced by the learned counse l appearing for the parties and also perused the evidences available on record, both oral and documentary, apart from the judgment and award passed by the refer ence Court. [14] The claimant in support of the claim of Rs.25,000/- per Bigha, a s land value, has proved 4(four) documents, namely, Exhibits-1, 2, 3 and 4, cont ents of which have already been noticed above. It appears from Exhibit-1 certif icate issued by the In-charge Assistant Settlement Officer that there is no inst ance of sale of garden lands in respect of Chandipur Grant where the acquired la nd is situated. The In-charge Assistant Settlement Officer has also certified t hat the land value of the adjacent village, namely, Dhalidahar and Dhalidha Gran ts, are Rs.15,000/- per Bigha approximately. It is, however, not known whether such value is of 28th September, 1994 or on the date of issuance of the notifica tion under Section 4(1) of the Act, as there is no evidence on record in that re gard. In the absence of any evidence in that regard, the aforesaid certificate issued by the In-charge Settlement Officer for ascertaining the land value of th e acquired land at the relevant point of time cannot be accepted. One thing, ho wever, is clear from the said certificate that at the relevant point of time the re was no sale transaction in respect of the Tea Garden land of Chandipur Grant. The claimants have also proved Exhibit-2 and Exhibit-3 sale inst [15] ances, which are the certified copies of the sale deeds. Section 51-A of the af oresaid Act provides that in any proceeding under the Act, a certified copy of a document registered under the Registration Act, 1908, including a copy given un der Section 57 of the Act, may be accepted as evidence of the transaction record ed in such document. The certified copy of such sale instances, Exhibits-2 and 3, are, therefore, for the purpose of ascertaining the land value are admissible in evidence. Though the Apex Court in Kurra Sambasiva Rao (supra) had held tha t for the purpose of proving the sale transaction either the vendee or the vendo r or the scribe of the sale deed is required to be examined, the same was held t o be not a good law by a constitutional Bench in Cement Corporation of India (su pra). The same view has also been reiterated by the Apex Court in Satish & Ors. Vs. State of Uttar Pradesh & Ors. reported in (2009) 14 SCC 758. [16] The contention of the ONGC that in the absence of examination of vendor or vendee or scribe of the sale deeds, being Exhibits-2 and 3, those can not be taken into consideration for the purpose of ascertaining the land value o f the acquired land, hence rejected. [17] This leads to the question as to whether the said sale instances (Exhibits-2 and 3) can be taken into consideration for the purpose of ascertain ing the land value of the acquired land, i.e. whether those are within the proxi mity or in the vicinity and are of the same nature as that of the land acquired. Though the Collector has awarded Rs.9,300/- per Bigha, stated to be on the bas is of the sale instances, no such sale instances have been produced or proved by the Collector. The sale instances, which are available on record and proved b y the claimant are the sale instances being Exhibits-2 and 3. As noticed above , Exhibit-2 is the sale deed in respect of 18 Kathas 3 Chataks of land, which i s a very small portion of land. By that deed, the land in Dhalidha Grants under Dhahidahar Mouza was sold. The claimant in order to prove that the said land i s in the vicinity of the acquired land, has introduced the sketch map being Exhi bit-4, wherefrom it appears that the said land though may not be in the proximit y of the acquired land but about 2 Kms from the land acquired. The nature of b oth the lands, namely, the land sold by Exhibit-2 and the acquired land, are als o same. By such Exhbit-2 sale deed land measuring 18 Kathas 3 Chataks, as notic ed above, has been transferred at Rs.13,000/-. The said deed being for a small portion of land, at least 30% is to be deducted from the value of the said land while ascertaining the land value of a larger plot of land and, in the instant c ase, more than 27 Bighas of land. However, there being no dispute that the valu e of the land is always increasing, there has to be an addition of 20% to such v alue per year, if such sale transaction is before the date of issuance of notifi cation under Section 4(1) of the Act. In the instant case, Exhibit-2 is dated 7 th January, 1988 and the notification under Section 4(1) was issued on 2nd June, 1989. The sale transaction is, therefore, of about 1‰ years before the date of issuance of the notification under Section 4(1) of the Act. Hence, for the pur pose of ascertaining the land value of the acquired land, 30% is to be deducted from Rs.14,200/- (being the price of 1 Bigha of land based on the price at which land vide Exhibit-2 has been sold), which would then comes to Rs.10,000/-, to w hich again 30%, i.e. Rs.3000/-, is to be added, the difference between the date of the sale transaction and the notification being 1‰ year. The land value, the refore, would be Rs.13,000/- per Bigha. The sale instance, i.e. Exhibit-3, is not relevant for the purpo [18] se of ascertaining the land value of the acquired land, there being no proof tha t the land transacted by such sale deed is in the vicinity of the acquired land. It is also evident from Exhibit-4 sketch map that the said land which is in Ba ndar Basti-II Grant, in which the land transacted vide Exhibit-3, is not in the vicinity of the land acquired. [19] It appears from the records that there is no evidence relating t o the value of the tea bushes. The Collector though has ascertained the compens ation for the tea bushes, as aforesaid, he has also failed to adduce any evidenc e in support of the award, so also by the claimant in support of the enhancement of the compensation awarded. However, all the parties have agreed that in the absence of anything, Krishnamurti formula for ascertaining the value of the tea bushes is to be applied and by following such formula, the value of per tea bush es would be Rs.35.50. The claimant, therefore, would be entitled to Rs.35.50 per tea bush, i.e. for 26500 tea bushes. [20] In view of the aforesaid discussion, the judgment and award pass ed by the reference Court fixing the land value of the acquired land at Rs.14000 /- per Bigha is set aside and the same is assessed at Rs.13000/- per Bigha. The compensation per tea bushes, however, is enhanced from Rs.25/- to Rs.35.50. Th e claimant would be entitled to the amount under Section 23(1-A) of the Act and also a sum of 30% on the market value under Section 23(2) of the Act in consider ation of the compulsory nature of acquisition, apart from the interest payable. [21] [22] Both the appeals are, therefore, partly allowed. No costs. The Registry is directed to send down the lower Court records.