High Court · 2012

4. The reference Court upon appreciation of the evidences on record, while rejecting the contention of the Collector that just compensation has been awarde d and refusing to place reliance on Exts.-4, 5, 7, 8 and 9 proved by the present respondent as well as holding that the claim of the petitioner is excessive as not based on the dependable evidence, however, has awarded Rs.25,000/- as value of the land acquired, Rs.50,000/- as the value of the house (building) and Rs.14 ,000/- towards the value of different trees grown over the land measuring 2 kath as 10 lechas belonging to the respondent, totaling Rs.89,000/- as compensation.

5. I have heard Ms. B. Dutta, learned Addl. Sr. Govt. Advocate, Assam, appe aring for the appellant and Mr. A.R. Sikdar, learned counsel appearing for the r espondent.

6. Ms. Dutta, learned Addl. Sr. Govt. Advocate, Assam appearing for the app ellant submits that the reference Court having refused to accept the Exts.-4, 5, 7, 8 and 9 and having held that the claim of the petitioner is excessive being not based on any dependable evidence, ought not to have passed the award enhanci ng the amount of compensation assessed by the Collector. Referring to the joint verification report, which was proved and marked as Ext.-Ka at the instance of t he Collector, it has also been submitted that the present respondent having two thatched houses measuring 6.0m X 4.0m and 6.50m X 3.50m, the reference Court oug ht not to have awarded the compensation of Rs.50,000/- towards the house taking it to be a RCC house, though the respondent could not lead any evidence relating to the existence of such houses over the land acquired. The learned State couns el also submits that it is being apparent from the said joint verification repor t (Ext.-Ka) that there were altogether 25 nos. of trees, which includes the mang o, beetle leaf, jam and bamboo, the assessment of compensation of Rs.14,000/- is excessive.

7. Mr. Sikdar, learned counsel appearing for the respondent, on the other h and, supporting the award passed by the reference Court, submits that the presen t respondent by proving two sale deeds, one dated 02.12.1983 and the other dated 25.02.1984 (Exts.-1 and 2), could prove that the land in village Baladoba, wher e the petitioner’s land situated, were sold at least at a rate of Rs.1,500/- per lecha and as such the reference Court did not commit any illegality in awarding Rs.25,000/- towards the value of the land measuring 2 kathas 10 lechas. It has also been submitted by the learned counsel that even if the joint verification r eport (Ext.-Ka) relating to the number of trees grown on the land is accepted, R s.14,000/- for 25 nos. of trees, as awarded by the reference Court as compensati on, cannot be said to be excessive. Mr. Sikdar further submits that since the pr esent respondent has the pucca structure over the land, Rs.50,000/- has rightly been assessed by the reference Court towards the value of such houses.

8. I have considered the submissions of the learned counsel for the parties and also perused the records of Misc.(L/A) Case No.111/1992, including the evid ence on record, both oral and documentary as well as the award passed by the ref erence Court, which is under challenge in the present appeal.

9. The Collector for acquisition of the land measuring 2 kathas 10 lechas b elonging to the respondent awarded Rs.5,072.30 towards the value of the land as well as the houses standing thereon apart from the trees grown. As noticed above , the respondent being not satisfied with the amount of compensation as awarded, filed the application under Section 18 of the Act for making a reference to the Court to decide the dispute relating to the amount of compensation payable and accordingly the reference was made and Misc.(L/A) Case No.111/1992 was registere d in the reference Court. The claim of the respondent before the reference Court was Rs.3,73,916.80 in the following break up:- Land valuation House building Septic Tank with sanitary filing Ring well Add eserbation Income per year from trees Mango tree Jack fruit Coconut trees 20 nos.- Beetle nut tree 40 nos.- 4 nos.- @500/- 3 nos.- @400/- @670/- @112/- - - - Rs.1,61,643.80 Rs.1,60,793.00 - - Rs. 3,000.00 Rs. 12,000.00 Rs. 15,000.00 : : : : 2,000.00 1,200.00 13,800.00 4,480.00

10. The respondent in support of his claim examined three witnesses, namely, the respondent himself as witness No.1, Sri Mahlem Uddin as witness No.2 and Sr i Abdul Husssain as witness No.3. The respondent also proved 11 documents, which were marked as Exts.-1 to 11. Exts.-1, 2 and 3 are the sale deeds dated 01.12.1 983, 25.02.1984 and 26.04.1985 respectively. While Exts.-1 and 2 relates to the transfer of land in village Baladoba, where the petitioner’s land, which was acq uired and situated, Ext.-3 relates to the sale of land in village Salmara. By Ex ts.-1 and 2 sale deeds, 16‰ lechas and 10 lechas of land were sold at Rs.10,000/ - and Rs.15,000/- respectively and by Ext.-3 the land measuring 10 lechas was so ld at Rs.20,000/-. Ext.-4 is a line plan of Assam Type building prepared by the Subordinate Engineer (Building), Dhubri dated 16.08.1992. Ext.-5 is also a docum ent prepared by the said Subordinate Engineer (Building), Dhubri dated 16.08.199 2 containing the specification of the Assam Typed house and the value thereof. E xt.-6 is the receipt dated 26.07.1992 issued by South Salmara Mankachar Mahkuma Parishad certifying payment of house tax of Rs.30/- pertaining to the years from 1986-87 to 1991-92. Ext.-7 is the certificate issued by the Tax Collector by th e said Mahkumar Parishad certifying that the house tax up to 1991-92 has been pa id by the respondent. Ext.-8 is a certificate issued by the Gaon Panchayat on 18 .09.1992 certifying that over the land, belonging to the petitioner measuring 2 kathas 10 lechas, 67 nos. of trees were grown which includes mango, jack fruit, coconut and beetle nut trees. Ext.-9 is a chart prepared by the Sub-Registrar, S outh Salmara giving the particulars of the land transaction pertaining to the ye ars 1983, 1984 and 1985. The award passed by the Collector on 05.08.1991 in L.A. Case No.16/1987-88 has been marked as Ext.-10. Exts.-11 and 2 are the same docu ments.

11. The Collector, who examined two witnesses, namely, Sri Kasem Ali, U.D. A sstt. in Land Acquisition branch of the Deputy Commissioner’s establishment (DW- 1) and Sri Surendra Nath Biswas, who at the relevant point of time was the Kanan go (DW-2), proved three documents, namely, the joint verification of Jirat (Ext. -Ka) and the sale instances, which is the basis of passing the award, (Exts.-Kha and Ga).

12. It appears from the impugned judgment and award that while the reference Court has refused to place reliance on Exts.-4, 5, 7, 8 and 9, however, has not discussed anything relating to the sale deeds being Exts.-1 and 2 proved by the respondent. As noticed above, vide Exts.-1 and 2 sale deeds, small areas of lan d were sold at a price of about Rs.1,500/- per lecha. Ext.-3 sale instance being not relating to the land in Baladoba village, where the respondent’s land situa ted, cannot be taken into consideration for assessment of the land value of the acquired land as the sale instances of comparable nature of land in the vicinity of the acquired land can only be taken into consideration. The respondent prove d the Exts.-1 and 2 sale deeds, by which small areas of land in the same village where the acquired land situated were sold. Since those are the only two docume nts available on record relating to the sale transactions of the land in Baladob a village, those sale instances can be taken into consideration for ascertaining the land value of the acquired land. The sale by these Exts.-1 and 2 being of v ery small areas of land measuring 16‰ lechas and 10 lechas, respectively, as aga inst the large area of land acquired i.e. more than 196 bighas, the value of the acquired land cannot be the value at which such sale transactions were made. Th e reference Court for the acquisition of the land measuring 2 kathas 10 lechas b elonging to the respondent has fixed the land value at Rs.25,000/-, which, keepi ng in view the sale instances of Exts.-1 and 2 cannot said to be excessive. It also appears from the Ext.-Ka joint verification report that admitted 13. ly there were 25 nos. of trees over the land measuring 2 kathas 10 lechas and he nce the award of Rs.14,000/- towards the value of the trees, keeping in mind the amount of profit the respondent could have earned, also cannot be said to be ex cessive. The certificate being Ext.-8 issued by the Gaon Panchayat authority on 18.09.1992 cannot be the basis for holding that the respondent had grown 67 nos. of trees over the land as there is nothing on record to show why such certifica te was issued much after the acquisition of land and what is the basis for ascer taining the number of trees. The said certificate also does not disclose that th e person who has issued the certificate personally visited the site and counted the trees. This leads to the question as to whether the reference Court was justifi 14. ed in assessing the value of the houses at Rs.50,000/-. Though the respondent in the claim petition has claimed that there were pucca structures apart from the sanitary latrine, septic tank etc., nothing however could be placed on record by the respondent, by way of evidence, to substantiate such plea. The reference Co urt has rightly refused to place reliance on the Exts.-4 and 5 issued by the Sub ordinate Engineer (Building), Dhubri on 16.08.1992, those being prepared much af ter the acquisition of the land. There is also no evidence on record relating to the field verification by the Subordinate Engineer before preparation of Exts.- 4 and 5. The Subordinate Engineer was also not examined as witness. It however a ppears from Ext.-Ka joint verification report proved by the Collector that the e xistence of two thatched houses measuring 6.00m X 4.00m and 6.50m X 3.50m are ad mitted. Keeping in view such admitted position and the size of the thatched hous es, it can reasonably be assessed that the value of the houses would be, at the relevant point of time, Rs.6,000/-. Thus the respondent would be entitled to the compensation of Rs.45,000/- (Rs.25,000/- for land + Rs.14,000/- for trees and R s.6,000/- for houses). The respondent shall also be entitled to a sum of 30 perc entum on the said market value under sub-section (2) of Section 23 of the Act in consideration of the compulsory acquisition apart from interest under Section 2 8 of the Act @9% per annum on the amount of compensation awarded in excess of th e sum which the Collector did award as compensation, from the date when the Coll ector took the possession of the land to the date of payment of such excess amou nt, for the first year from the date when the possession was taken over and then 15% per annum from the date of expiry of the 1(one) year on such excess amount till the date of payment.

15. The award passed by the reference Court stands modified to the extent as indicated above. The Registry is directed to draw up the decree.

17. The appeal is, therefore, partly allowed. No cost. The Registry is directed to send down the records.