SABID ALI Vs. STATE OF ASSAM AND ORS.

JUDGEMENT

(1.) This first appeal is directed against the judgment and deemed decree dated 28.09.2004 passed by Ad -Hoc, Additional District Judge, Kamrup at Guwahati in reference case No. 23/1999. Land measuring 2 bigha 4 katha 17 lechas situated in village Uttar Jalukbari under Jalukbari mouza in the district of Kamrup was acquired by the State for construction of B.G., railway line. A notification under Sec. 4(1) of the Land Acquisition Act, 1894, was issued for the purpose on 20.03.1992 vide No. RLA -92/92/2. In the notification, land covered by Dag No. 401 (old)/94 (new) was described to be annual patta land belonging to Petua Sheikh, Fazir Ullah and Maminsa Sheikh, all sons of Niram Sah Sheikh. The jurisdictional Collector was of the view that the acquired land was an annual patta land and with that presumption assessed compensation at Rs. 1,58,152.50. Two -third of the aforesaid award amounting to Rs. 1,05,435/ - was received under protest on 11.03.1994 but the balance one -third was not received. The present appellant who was also a claimant made a prayer before the Deputy Commissioner for referring the case to the District Judge under Sec. 18 of the Land Acquisition Act and thereupon reference case No. 23/1999 of the court of learned District Judge, Kamrup at Guwahati was registered. On being transferred to the Court of learned Ad -Hoc Additional District Judge at Guwahati, the parties appeared and submitted their respective pleadings. The petitioner challenged decision of the Collector in regard to market value of the land holding that the Collector wrongly assessed the land at the rate of Rs. 60,000/ - per bigha whereas it being situated near national highway, ought to have been assessed at least at Rs. 4,00,000/ - per bigha. He also claimed that land was of high commercial potentiality in view of its short distance from Airport, University and Bus stand and so award ought to have been accordingly made by the Collector. Upon such rival contentions of the parries, the learned Ad -hoc Additional District Judge framed the following 4 (four) issues and allowed the parties to adduce necessary evidence to prove their respective case.

(2.) Claimant petitioner appeared and examined 2 witnesses including himself. In course of his evidence, claimant Sabid Ali stated that he had 1 katha 3 lechas in Dag No. 429, 3 lechas in Dag No. 365 and 5 1/4 lechas in Dag No. 354. By exhibiting Jamabandi of the said land, he showed that in the year 1961, annual patta land had been converted into periodic patta land by realisation of premium. Ext. 1 shows that in 1961 vide order dated 13.12.1961, the Assistant Settlement Officer collected premium from one Petua Sheikh, Fazir Ullah and Maminsa Shiekh with respect to 2 bighas 3 kathas 17 lechas and thereupon the land was converted into a periodic patta land. Ext. 2 shows that name of Sabid Ali as S/o. Fazir Ulla, who was one of the original pattadars. So, it is clear that though the land was originally annual patta land but subsequently, in the year 1961 it was converted into periodic patta land and thereupon the predecessor -in -interest of the petitioner became one of the pattadars. PW 1 further claimed that acquired land is situated adjacent to the national highway whereas Guwahati University and Adabari Bus stand are situated at a near distance. The collector wrongly presumed the land to be the annual patta land and assessed the same at much lower price. He claimed that the market value of the land would be Rs. 4,00,000/ - per bigha and he is entitled to get compensation at the same rate. He further claimed that he had a pond in Dag No. 94 and he reared fishes therein but no compensation has been given to him by the Collector on this account.

(3.) PW 2 is one Hemanga Baishya, son of one Umesh Chandra Baishya. He stated that in Dag No. 428 and 429 of the same locality he purchased 1 katha3 lechas land. He stated that by sale deed No. 1729/93 he purchased 1 katha 11 lechas of land by making payment of Rs. 80,000/ -. The land purchased by him is at a distance of 1/2 - 1 km from national highway. The land was a low land one. He has constructed the house by filling up the same. The land of Sabid Ali is situated near the national highway. According to him, his land is situated in an interior part. Upon perusal of Ext. 3 it appears that Subrata Talukdar and others sold 1 katha 11 lechas of land to Hemanga Baishya on 07.04.1993 at Rs. 80,000/ -. The land is butted and bound by the south of the A.T. Road, by north -S.S. Agarwal, by east - S. Dutta and by west -by his own land. It is situated in village Kumarpara Gaon under Jalukbari mouza. The acquired land was a periodic patta land and it is situated adjacent to the national highway. Considering all these aspects of the matter, learned Reference Court considered the Ext. 3 sale deed and thereupon assessed that the value of the land would be Rs. 2,00,000/ - per bigha. This was done by considering that 1 katha 11 lechas of land was purchased by PW 2 at a price of Rs. 80,000/ - and in that event, the rate for such land would be Rs. 2,58,000/ -. This price was as on 07.04.1993 i.e. nearly one year after issuance of notification under Sec. 4 of the Land Acquisition Act, 1894. The reference court has not allowed interest under Sec. 28 and 34 of the Land Acquisition Act, 1894 on the ground that no claim has been made to that effect. This decision, rendered by judgment and award dated 28.09.2004, has been called in question in the present appeal.