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Gandhamoyee Devi Vs. Collector of Kamrup, Gauhati - Court Judgment

LegalCrystal Citation
Subject;Property
CourtGuwahati High Court
Decided On
Case NumberFirst Appeal No. 302 of 1973
Judge
ActsLand Acquisition Act, 1894 - Sections 3, 5A, 9, 11 and 54
AppellantGandhamoyee Devi
RespondentCollector of Kamrup, Gauhati
Appellant AdvocateB.M. Goswami and M.K. Bhattacharyya, Advs.
Respondent AdvocateD.N. Konwar, Govt. Adv.
DispositionAppeal allowed
Prior history
Lahiri, J.
1. The three-tier land acquisition proceedings took 21 years and 6 months to conclude. Those responsible for the inordinate delay must be up and doing to see that such remiss do not recur in future. If such procrastination, apathy and negligence continue it would

culminate in the destruction of the court system without which no democracy can survive. Values in all spheres of life and society are dwindling, crashing down and with it the money value. One is just to glance at the P
Excerpt:
.....we find clear admission from the tenant tek bahadur as well as from the collector that she was the person entitled to compensation as the owner of the land. it is true that some negotiations were made by her sons in respect of the acquired land, however, they do not show that the claim of right of the appellant was defeated by the actions of her children. all the witnesses examined in the case deposed in one voice that she was the owner of the land and entitled to compensation and these include the witnesses for the collector as well. accuracy is well nigh impossible. 'cha' clearly shows that he merely visited and held that the value should be rs. we fail to understand how could the learned judge hold that the documents were inadmissible. taking into consideration the oral evidence of..........or consider the price paid within a reasonable time in bona fide transactions of purchase of land acquired or the lands adjacent to the land acquired or the number of years' purchase of the actual or immediately prospective profits of the land acquired. in fact, no effort was made by the collector at all. it was a conclusion based on no material. witness no. 2 for the collector said that dag no. 322 was agricultural land and was at a distance of 1320 feet from the zoo road, a p. w. d. road. land in dag no. 242 (282) was ala i.e. agricultural land. whereas land of dag no. 273 was 'naba' is basti land. it was 1980 feet away from the public road but there was a path connecting the acquired land with the road. therefore, from the collector's side we do not find that the lands suffered.....
Judgment:

Lahiri, J.

1. The three-tier land acquisition proceedings took 21 years and 6 months to conclude. Those responsible for the inordinate delay must be up and doing to see that such remiss do not recur in future. If such procrastination, apathy and negligence continue it would

culminate in the destruction of the court system without which no democracy can survive. Values in all spheres of life and society are dwindling, crashing down and with it the money value. One is just to glance at the Price Index to notice how prices have gone up since 1960 (the year of acquisition). The relevant Notification Under Section 4(1) was made on 9-3-1960, so the compensation has to be pegged to the market value as on that date. Of course about 22 years have rolled by since, thanks to delay which has come to stay permanently in the administrative and forensic processes of our land. One of us lamented in similar tune in F. A. No. 117 of 1966, Collector of Kamrup v. Rabiran, decided on 4-8-1976, It seems that no force can activate our administrative and forensic process to make them ambulatory. Now as late as in 1981 we can perhaps do no more than look towards Heaven with folded hands Who suffer? Surely, the poor litigants Is change in law imperative? We have no doubt in our mind.

2. The appellant is a widow. She preferred this appeal Under Section 54, Land Acquisition Act, 1894, 'the Act' for short, against the Judgment and Award/Decree of the Acquisition Judge dismissing the claims of the Appellant (i) for enhancement of the market value of her acquired land and (ii) for a declaration that Tek Bahadur, who had been held by the Collector as a Tenant in respect of a portion of the acquired land, was not a tenant entitled to any compensation.

3. A parcel of land measuring 10 Bi-ghas 4 Kathas and 5 Lechas at village Japorigog, Mouza Beltola, Gauhati, owned by late Ambika Prasad Goswami, husband of the appellant was acquired by the State for New Gauhati Railway Marshalling Ward. The Notification under Section 4(1) of the Act was duly published on 9-3-1960 and the declaration under Section 6 was made on 5-10-1960. On receipt of the notice the appellant appeared before the Collector and put forward Her claim. On inquiries the Collector foun.3 the appellant, wife of the recorded owner (late Ambika Goswami] as the person interested in the acquired land. The Collector awarded compensation @ Rs. 2,500/- per bigha, that is, Rs. 500/-per Katha, as the market value of the land. The Collector held that Sri Tek Bahadur was a raiyat in respect of 6 Bighas 4 Kathas and 5 Lechas of the acquired land covered by Dag Nos. 322 and 282 in K. P. Patta No. 185 and awarded

1/4th of compensation in respect of the land held by him as a tenant which came to Rs. 6,892.81. He prepared the statement of compensation showing the appellant as the person entitled to compensation. The Collector communicated the award and the appellant claimed for reference Under Sections 18 and 31 of 'the Act'. She claimed that the market value was Rupees 3,000/- per katha, Tek Bahadur was not her tenant and so he was not entitled to any apportionment of the compensation. There was a technical error in her application in quoting the Mouza of the land. However, she had correctly stated the Land Acquisition Case No., full description of the acquired land and all other material particulars, While submitting his report the Sub-Deputy Collector stated that the acquired land stood in the name of the appellant's husband. On rectification of the technical defect the reference was made by the Collector. In the letter of reference the appellant was shown as the only person entitled to compensation. The Collector sought to Justify the award of market value of the land.

'On the basis of sale transactions of land in the locality and other material including nature and situation of class of the land.'

4. On reference, the civil court took cognizance of the same and caused it to be registered as Misc. Case No. 3 of 1969, No objection was raised by the Collector about the locus standi of the appellant. Tek Bahadur appeared to contest the claim but had to admit that the appellant was his landlady and she was owner of the acquired land. Three witnesses were examined on behalf of the appellant and six documents were exhibited, The Collector examined two witnesses and proved some documents, Tek Bahadur deposed. On conclusion of trial the learned Judge dismissed the claim of the appellant. The learned Judge held thats

(i) The appellant was not a person Interested in the land and she had no locus standi to claim compensation. Notwithstanding the said finding the learned Judge proceeded to decide the other Issues and determined them against the claimant namely,

(ii) The award of compensation made by the Collector was Just, fair and adequate; and,

(iii) Sri Tek Bahadur was the recorded tenant of a portion of the land and he was entitled to compensation as awarded by the Collector,

Insofar as the first point is concerned suffice is to say that the learned Judge made out a new case, misread and/or omitted to read the relevant evidence. In determining points (ii) and (Hi) the learned Judge made a summary assessment of the evidence in a slipshod manner and reached the conclusions which required much more exercise at that end.

5. Now let us consider as to whether the appellant is a person interested or not. The meaning of the expression 'person interested' will be a relevant consideration for determining point No. (iii) as well. Therefore, it is necessary to explain the meaning of the expression as understood in 'the Act.' The effect of Land Acquisition is to relinquish the rights of the owners in the land and to vest it exclusively in the Government. As such, any person affected by the extinguishment of the right in the land comes within the provision of Section 3(b) of 'the Act'. Section 3(b) reads as follows:--

'3. In this Act, unless there is something repugnant in the subject or context :

(a) * * * *

(b) the expression 'person interested' includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act, and a person shall be deemed to be interested in land if he is interested in an easement affecting the land'

A mere look at the definition makes it clear that any person claiming an interest in compensation on account of acquisition of land falls within Section 3(b) of 'the Act'. Even 'a person interested in easement in land' is also a person interested by virtue of the deeming provision. The entire scheme of 'the Act' shows that the Collector must deal with those persons who are interested in the land and they must be heard under Section 5A of 'the Act'. Section 11 of 'the Act' provides that Collector must inquire into the respective interest of the person claiming interest and it is a condition precedent for making a valid award by the Collector. The appellant was heard under Sections 5A and 11 of 'the Act'. She was held to be the person interested and compensation was awarded in her favour as we find in the Statement of Compensation. Nobody objected to her claim of compensation. The learned Judge made out a new case for the Collector that the

appellant was not interested in the land though no such case was pleaded by the Collector or any person in any form whatsoever. From the letter of reference Ext. Ka, we find that the Collector on inquiry found and declared the appellant as the only person interested in the land. The Revenue Authorities admitted that she is the widow of late Ambika Go-swami, the recorded pattadar of the land. The statement of compensation proves that she was awarded compensation by the Collector. Even the tenant Tek Bahadur deposed in clear term that she was the landlady in respect of the land which he held as tenant. He admitted that the appellant was the owner of the land . Therefore, we find clear admission from the tenant Tek Bahadur as well as from the Collector that she was the person entitled to compensation as the owner of the land. Apart from this, we find there is documentary evidence in support of her right to claim compensation. It is true that some negotiations were made by her sons in respect of the acquired land, however, they do not show that the claim of right of the appellant was defeated by the actions of her children. All the witnesses examined in the case deposed in one voice that she was the owner of the land and entitled to compensation and these include the witnesses for the Collector as well. Therefore, where was the contest that enabled the learned Judge to hold that the appellant was not a person interested, is beyond our comprehension. Admittedly, she is the wife of late Ambika Goswamy, the recorded pattadar. None of her children claimed any part of the compensation at any stage of the proceedings. On the other hand PW 1 Rama Prasad Goswami, son of the appellant, has testified on oath that she is the owner of the land and entitled to compensation and all his brothers are living with the appellant in a joint family. Therefore, we hold that the self created contest was the product of imagination emanating from the mind of the learned Judge which had no foundation whatsoever. The evidence on record is an one way traffic in favour of the appellant. Accordingly we set aside the finding of the learned Judge and hold that the appellant is undoubtedly a person interested in the land and has had locus standi to contest the Award.

6. However, in the instant case, it is essential to ascertain the amplitude,

range and sweep of the meaning of the expression 'person interested'. Can a person acquire the status of 'a person interested' if during the course of the compensation proceedings or before conclusion of trial in the civil court a person interested relinquishes his right to claim compensation in favour of the former? An answer to the question is essential to determine a cognate question connected with the third issue. In the instant case, after the making of the Collector's award but during the pendency of the proceedings before the civil court, Shri Tek Bahadur admittedly relinquished his tenancy right in respect of 6 Bighas 4 Kathas 5 Lechas of the acquired land in favour of the appellant, executed a deed of relinquishment and in lieu of such relinquishment got one bigha of land from the appellant. Whether on such relinquishment the appellant would be entitled to claim the compensation awarded and/or further enhancement of compensation, if any, at this end? The factum of relinquishment is a subsequent event. Can we take such subsequent events into consideration? A similar question arose before the Supreme Court in Sunderlal v. Param-sukhdas, AIR 1908 SC 366 (at p. 370). Their Lordships have held that there is nothing in 'the Act' which prohibits the Collector from making a reference Under Section 30 of 'the Act' for determination of the title of the person who has since the date of award acquired a right of compensation. If after a reference is made, a person interested dies and his title devolves on another person because of inheritance, succession, insolvency, forfeiture or compulsory winding up or from other form of statutory transfer, it would be open to the party upon whom the title devolves to prosecute the claim which the person from whom the title has devolved could have prosecuted. Their Lordships upheld the decision in Promotha Nath Mitra v. Rakshlal Das, (1910) 11 Cal LJ 420, where it had been held that a reference made by the Collector at the instance of the proprietor of the land might be prosecuted by the purchaser of his rights, after making of the award, at a revenue auction. Their Lordships approved similar views expressed in Golabkhan v. Bholanath Manick, (1910) 12 Cal LJ 545 and Siva Pratap Bhattadu v. A. E. L. Mission, AIR 1926 Mad 307. It follows, therefore, that if Tek Bahadur, the tenant, has relinquished his right, title and interest in the acquired land, after making of the award by the Collector but during the proceedings before the Court and if his interests devolved in the appellant, the compensation which the tenant was entitled should be awardable to the appellant. Similarly if the tenant is entitled to get any enhanced rate in the proceeding before the court or in this appeal, the appellant shall be entitled to get it.

7. Leaving the matter for the time being let us consider the question of the market value of the land. The market value of the land is to be determined on the date of the notification. A person is entitled to get the market value of the land, the damages referred in Section 23(1), secondly to sixthly, plus 15% on such market value, in consideration of the compulsory nature of acquisition. When the amount of compensation is not paid or deposited on or before taking possession of the land the Collector must pay the amount awarded with interest thereon at the rate of 6 per cent per annum from the time of so taking until it is paid or deposited. The intention of Section 23 of 'the Act' is to provide a complete indemnity to a person whose land is compulsorily acquired. The sub-clauses of Section 23 give effect to the principles by enumerating the heads under which compensation shall be awarded. The key to the meaning of the word 'compensation' is to be found in Section 23(1) of 'the Act'. It may be divided into two categories --firstly, the market value of the land at the date of publication of notification Under Section 4(1) of 'the Act' and 15 per cent solatium Under Section 23(2) of 'the Act'. Secondly, it consists of all the damages referred in Section 23(1) secondly to sixthly. The expression 'market value' has not been defined but it has acquired a definite connotation by judicial pronouncements. The concept of market value is that a willing purchaser would pay to a willing seller for the property, having due regards to its existing condition with all its existing advantages and its potential possibilities when laid out in the most advantageous manner, excluding any advantage due to the carrying out of the scheme for which the property is compulsorily acquired. The Supreme Court has laid down the methods of valuation to be adopted in ascertaining the market value on the date of notification Under Section 4(1). The following methods have been prescribed by their Lordships to ascertain the market value :

(i) 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.

It will be evident that these are not exhaustive and other methods might be adopted under special circumstances. The entire object is to arrive, as early as possible, at a reasonable correct market value. It may be necessary to take two or all of the methods set forth above into account. But all the methods are more or less based on guesswork and approximate calculation. Accuracy is well nigh impossible. However, calculation must be based on some basic materials on record.

8. Now let us try to find out whether the market value of the land determined by the Collector can be relied upon. No effort was made by the learned Judge to consider the material at his disposal. As alluded, the letter of reference states that the Collector arrived at the conclusion that the relevant market price of the land was Rs. 2,500/- per bigha, i.e., Rupees 500/- per katha on the basis of (1) sale transaction of the land in the locality, (2) other materials including the nature, situation and class of land. The claimant questioned the valuation whereupon on behalf of the Collector evidence was adduced and two witnesses were examined to justify the award made by the Collector. PW 1 Madhab Das stated that originally the market value was fixed at Rs. 2,500/- per bigha but later it was revised to Rs. 3,500/- per bigha. He readily conceded in cross-examination that the sale statement could not be pro-'duced in Court. He took up the plea that the sale statement was filed in the High Court, However, we find a different statement in the Justification Report, marked Ext. 'Cha'. There is no inkling in the Justification Report that the Collector ever took into consideration any sale transaction of land during the relevant period. Ext. 'Cha' clearly shows that he merely visited and held that the value should be Rs. 2,500/- per bigha. There was no basis for arrival at the conclusion. The Collector did not consider about value of the product of the land but admitted that the land was agricultural. In the same village for the first block he assessed the market value at Rs, 5,000/- per bigha for the second

block he assessed at Rs. 3,500/- per bigha. But there was no reason why there was such difference in valuation.

'The Justification Report' is most scrappy. In fact, it is not the original but only a copy and no explanation was given why the original could not be produced. We find that there was no exercise made by the Collector to take any expert opinion or consider the price paid within a reasonable time in bona fide transactions of purchase of land acquired or the lands adjacent to the land acquired or the number of years' purchase of the actual or immediately prospective profits of the land acquired. In fact, no effort was made by the Collector at all. It was a conclusion based on no material. Witness No. 2 for the Collector said that Dag No. 322 was agricultural land and was at a distance of 1320 feet from the Zoo Road, a P. W. D. road. Land in Dag No. 242 (282) was Ala i.e. agricultural land. Whereas land of Dag No. 273 was 'Naba' is Basti land. It was 1980 feet away from the public road but there was a path connecting the acquired land with the road. Therefore, from the Collector's side we do not find that the lands suffered from any intrinsic disadvantage except that they were around 400 yards to 660 yards away from Zoo Road. However a path connected the lands with the main road. As such, the lands acquired were just average lands and had no special disadvantage except that they were slightly away from the road.

9. Now, let us turn to the evidence of the appellant's side. The learned Judge rejected them on the ground that they were not helpful. PW 1 Sri Goswami has proved three sale deeds and an award made in a land acquisition case. We fail to understand how could the learned Judge hold that the documents were inadmissible. Exts. 1, 2 and 3 are undoubtedly certified copies and not the original. However, these were proved without any objection. All the documents were admitted without any objection by the Collector. Ext. 1 shows that the appellant's husband sold two kathas of land in Patta No. 185 (the patta is the same with that of the acquired land) at Rs. 6,000/-, that is to say at the rate of Rs. 15,000/-per bigha. The transactions took place on 4-9-1957, about three years before the notification Under Section 4(1). Ext. 2 shows that the husband of the appellant sold 2 kathas 12 lechas of land at Rs 10,400/-. Ext. 2 is also from Patta No. 185 (the same patta with the acquired land).

However, we find that it is a road side land. As such, land in the same patta was sold in 1957 at Rs. 3,000/- per katha i.e. @ Rs. 15,000/- per Bigha. The land of Ext. 1 is not a road side land. We also find that in 1959 a parcel of road side land was sold at Rs. 20,000/- per Bigha. Ext. 3 is a document which shows that from the same field 2 Kathas of land were sold at Rs. 14,500/-. It has been stated that Ext. 3 was close to the acquired land. However, the transaction was on 2-8-1963, long 3 years after the date of acquisition. Many developments and projects indeed took place in the mutation. As such the price in 1963 cannot be a measure for determination of the market price of the land in the present case. Similarly Ext. 4 is not very relevant for the purpose of this case. It is true that the court awarded Rupees 20,0007- 'per bigha in respect of similar land in Misc. Case No. 20768. However, we do not get when the land had been acquired. In the absence of any evidence that the land was acquired in or around March, 1960, we leave the document out of consideration. Summing up the evidence we find that the land is of standard quality. There is no inherent disadvantage except that it is away from the main road, however, there was a path that connected the land with the main P. W. D. road. The land is a compact block. In 1957, land from the same patta was sold @ Rs. 3,000/- per Katha i.e. Rupees 15,0007- per bigha and in 1959 land from the said patta was sold at Rupees 20,0007- per Bigha vide Exts. 1 and 2 respectively. But these small plots and the land acquired is comparatively larger. Further, Ext 2 land is road side land. But there was a distinct sign of increase in market value of land. The city of Gauhati increased by leaps and bounds, Refinery, Brahmaputra Bridge and all round industrial and commercial expansions were coming up just about 1960 --any Hand Book on Statistics would show these. With these, demands value of land increased. There is no doubt that these are relevant factors. But there is no evidence about the impact of industrialization etc. in the area. The learned counsel has drawn our attention that Refinery, the Capital Complex and all important growth were towards the area. We can say this much and no further that the claimant should have adduced evidence to substantiate them.

PW 2, Prem Kanta Chaudhury is a retired S. K. and Mandal working in the

Revenue Department of the Government. He is a resident of the same village with that of the acquired land. He has stated that the price of the lands in the area was on the increase since 1957-58. PW 3 Mafizur Rahman is resident of the area and he stated that the value of land in 1957-58 was Rupees three or four thousand per katha. Taking into consideration the oral evidence of these witnesses which were not contradicted by the Collector as well as Exts. 1 and 2 we find that the value of land in the same patta was Rs. 15,0007 per Bigha in 1957 and Rs, 20,000/- per Bigha in 1959. However, these were smaller plots and Ext. 2 land was road side land having a distinct advantage. Further, we assume that these were the best plots in the patta. So, we determine the market value of the acquired land at half the rate at which it was sold in 1957-59 and assessed it at about Rs. 10,000/- per Bigha. However, about two years elapsed in between the sale transaction and the date of acquisition two very important and relevant years of growth and increase in value of land in and around Gauhati. As such, we arrive at the conclusion that the market value of the land in its actual condition at the time of the expropriation was Rupees 12,500/- per Bigha. As such we declare that the appellant shall be entitled to (i) compensation at the rate of Rupees 12,500/- for the acquired land, (ii) interest @ 6% from the date when the possession of land was taken till the final payment of the amount is made to the claimant as well as the statutory solatium @ 15%. However, the solatium shall be payable to the claimant in respect of the enhanced amount of solatium has been awarded by the Collector on his awarded amount. Otherwise the appellant shall be entitled to solatium for the entire amount. We make the contingent order as the original Award has not been produced before us.

10. Will Shri Tek Bahadur be entitled to any share in the increased amount of compensation? Is he entitled to compensation awarded by the Collector, in view of the deed of relinquishment? Shri Tek Bahadur appeared in Court and deposed as a witness in support of his case. However, he admited that his ryoty land belonged to the appellant Gandhamoyee. He indeed tried to deny about relinquishment deed in his Examination-in-Chief but in cross-examination he admitted in unequivocal term that he executed the deed of relinquishment of the tenancy

right in favour of the appellant on 9-3-1971', gave up his right, title and interest in the acquired land and in lieu thereof got one Bigha of land in a separate plot of land in terms of the deed of relin-quishment. The appellant sold 1 bigha of land. He deposed that he relinquished 'stating not to claim as a tenant'. Therefore it is an admitted fact that Tek Bahadur relinquished his right, title and interest in the land and also relinquished his claim for compensation as a tenant in respect of the portion of land under his occupation as tenant. Upon acquisition of the land the land vested in the Government and he had no right, title or interest therein except to claim compensation for compulsory acquisition. The said right to compensation was relinquished by Tek Bahadur in favour of the appellant. Although it was after the making of the award but it was undoubtedly during the pendency of the case in the court of the learned Judge. Therefore, the subsequent event of relinquishment is material because the appellant stepped into the shoes of the tenant and became entitled to compensation which the tenant was entitled in law on devolution of the said right by the deed of relinquishment coupled with the admission of Tek Bahadur. As such the entire compensation awarded by the Collector in favour of Tek Bahadur and the enhanced compensation of the land must go in favour of the appellant. As such we hold the appellant shall be entitled to the entire compensation awarded and enhanced by us in this appeal.

11. In the result the impugned award of the learned Judge is set aside and the payment of compensation shall be awarded to the appellant in terms of the judgment and decree in the appeal. The appellant shall be entitled to costs of this appeal.

12. Before we take leave we would observe that Assam Land Acquisition Manual requires thorough scrutiny and overhauling to bring it up to the mores of the day. It should be moulded in the light of the laws made by the Supreme Court. We reckon that the Manual has outlived its utility. This apart, we find inordinate delay in disposal of land acquisition cases. The remedial measures of the chronic ailment is to treat the cases as Original Civil Suits and strict directions from the High Court to dispose them of within six months from the date of registration of the cases. Stalled proceedings cause agonies, pangs and econo-

mic hardship to the poor litigants. Early disposal of the cases is imperative in view of the fall in money value. Wo also note that the Assam Rules framed under 'the Act' by Government of Assam's Notification No. 1211-R dated the 19th April, 1932 is absolutely inadequate to meet the present need.

T.C. Das, J.

13. I agree


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