Sarala Bala Roy Vs. State of Assam and ors. - Court Judgment

Excerpt:
- - jayanta deka, learned counsels who appeared for the appellant as well as mr. in the said suit initiated by sarbananda roy, it was contended by the defendants that the suit is bad, inter alia, for non-joinder as defendant, the state of assam, which has not been arrayed as defendant. it was clearly overlooked that only by making the said concession, the plea of the private defendants for rejection of the suit for non-joinder of state of assam as a defendant, was resisted by the sarbananda’ 5(a) to 5(f) late sarbananda roy never came to claim the compensation prior to the year 1991. the name of late sarbananda roy does appear in the certificate of possession, the compensation was never claimed by him before the collector in proceeding under section 11 as well as in reference..... hrishikesh roy, j.1. this appeal brought before this court under section 54 of the land acquisition act, 1894 hereinafter referred to as the 'act' read with section 96 of the code of civil procedure, is against the judgment dated 25.8.1994 in misc. (la) case no. 93 of 1991 passed by the learned additional district judge, dhubri. the proceeding before the learned district judge was on a reference made under section 30 of the act pertaining to apportionment of compensation between the parties in the case.2. we have heard mr. s. sarma and mr. jayanta deka, learned counsels who appeared for the appellant as well as mr. d.c. mahanta, the learned senior counsel representing the private respondents. we have also heard mr. p.s. deka, the learned government advocate who appears for the respondent.....

Judgment:

Hrishikesh Roy, J.

1. This appeal brought before this court under Section 54 of the Land Acquisition Act, 1894 hereinafter referred to as the 'Act' read with Section 96 of the Code of Civil Procedure, is against the judgment dated 25.8.1994 in Misc. (LA) Case No. 93 of 1991 passed by the learned Additional District Judge, Dhubri. The proceeding before the learned District Judge was on a reference made under Section 30 of the Act pertaining to apportionment of compensation between the parties in the case.

2. We have heard Mr. S. Sarma and Mr. Jayanta Deka, learned Counsels who appeared for the appellant as well as Mr. D.C. Mahanta, the learned senior counsel representing the private respondents. We have also heard Mr. P.S. Deka, the learned Government Advocate who appears for the respondent No. 1.

3. The reference under Section 30 of the Act made by the Collector arose out of a land acquisition proceeding initiated under LA Case Nos. 76-77 whereby land was acquired by the Assam Government for construction of a regulated market at Gauripur Town in Dhubri District. It would be apposite to extract the memo of reference forwarded by the Collector, Dhubri under Section 30 of the Act as the particular therein would be relevant for adjudication of the present dispute:

1. Number and date of the Declaration No. RLA 210/79/77 of

declaration under which 18.6.80 published at page 1302

the land has been acq- pt. II A of the Assam Gazette of

uired. the Dt. 30.7.1981.

2. Situation and extent Dag No. 76 : 2K-3L

of the land, in acres "No. 77 : 2B-4K-4 L

and decimals, the num- "No. 389 : IB- 1K-4L under khatian

ber of field plots on No. 65 of Gouripur Town Pt.

the map, the name of

the vill. and the num-

ber of mile plan, if

any.

3. Name and addresses Sarbanana Roy (since deceased)

of the person intere- S/o Niyasta Roy, resident of

sted in the land and Gouripur Ward No. 1, Smti.

the nature of their Saralabala Roy, W/o Dhajendra

respective interests. Singha resident of Gouripur

Town Pt. 1, Sri Alokesh Ch.

Barua, Sr. Arup Barua, all

are Sons of Lt. Pramathes

Barua, C/o Rajbari Gouripur

Town, Collector, Dhubri.

4. Amount of compen- Rs. 1,63,389.25 (Rupees one

sation awarded under lakh sixty-three thousand

section 11. three hundred eighty-nine

and twenty-five paise only.

5. Particulars of the That a plot of land measuring 5

dispute B-2K-11L covered by khatian No.

65 of Gouripur Town Part 1 was

acquired for construction of

regulated Market of Gouripur.

The Khatian No. 65 stands in

the name of Alokesh Ch. Barua,

Shyamalesh Barua and Arup Barua.

That one Sarbananda Roy and

another Smti. Saralabala Roy

have separately filed petition

for claiming compensation as

tenants of the Khatiandars.

They have also filed copy of

the ex parte decree of Title

Suit No. 58/80 filed by Sar-

bananda Roy and copy of

decree and judgment of Title

Suit No. 512/80 and Title

Appeal No. 119/85 filed by

Smti. Saralabala Roy.

That, as there has arisen a dispute as to the person to whom compensation money or any part thereof is payable, I am referring the said dispute for the decision of the court under Section 30 of the Land Acquisition Act, 1894.

Sd/- Collector, Dhubri.

From above reference, it can be noted that lands under dag Nos. 76, 77 and dag No. 389 were subject of acquisition, as they have some bearing on the claim made by the parties in the case. As already noted lands of these 3 dag Nos. are under khatian No. 65 of Gauripur town. This khatian No. 65 stands in the name of Alokesh Barua, Shyamalesh Barua and Arup Barua.

4. Three distinct groups amongst the contesting parties have emerged as claimants to apportionment the compensation package arising out of the aforesaid land acquisition proceeding. The first group, which may be described as 'BARUAS' are the 'khatiandars' of the land acquired. This group is arrayed herein as respondents 2(a)(b)(c), 3 and 4(a),(b) and (c) respectively.

The next claimants are respondent 5(a) to 5(f) who are sons of late Sarbananda Roy, who are being described herein as 'SARBANANDAS'. They are staking their claim on a share of compensation on the basis of a claim of being Jenant under the 'khatiandars' in respect of a portion of acquired land.

The appellant who may be described as the 'SARLABALA' is similarly staking her claim for apportionment of compensation as a tenant under the 'khatiandars'.

5. Now a recording of some of the salient developments would be necessary for adjudicating on the present dispute. The Government on 15.11.1977 took possession of the acquired land and an award was passed on 1.10.1980 whereby different rates of compensation ranging from Rs. 1,000 to Rs. 7,000 per bigha were fixed by categorizing the acquired land in six different categories.

The appellant Saralabala Roy objected to the rate of compensation fixed by the award dated 1.10.1980 and filed Misc. (LA Case No. 18/82 and 19/82) where after, the Collector referred the matter to the civil court for proper determinations of compensation payable for acquisition of land.

The learned District Judge, Goalpara by order dated 11.5.1983 enhanced the award to an uniform rate of Rs. 18,000 per bigha by removing the categorization made and directing interest at the rate of 6% per annum from the date of taking over possession of the land till realization.

The Collector, Goalpara preferred appeals before this court against the enhancement order, by the learned District Judge, Goalpara and finally on 11.5.1983 the quantum of compensation payable came to be adjudicated simultaneously by hearing all the appeals together. The appellant Saralabala Roy was respondent in the said proceeding before the High Court in FA No. 43/84 and FA No. 44/84. This court after consideration of the argument advanced on behalf of the Government and the claimants, by a common judgment dated 28.6.1990 dismissed the appeals preferred by the Government and upheld the rate of compensation fixed by the learned District Judge, Goalpara at Rs. 18,000 per bigha. This court further directed that the claimants/respondents in each of the appeal shall also be entitled to solatium of 30% in terms of Section 23(2) of the Act.

6. Late Sarbananda Roy who is the deceased father of respondents 5(a) to 5(f) although claim a share in the compensation as a tenant/possessor, did not contest the LA Case No. 16/76-77 either before the Collector or before the learned District Judge nor before this court in course of the proceeding for fixation of the quantum of compensation for the acquired land. But 'SARBANANDAS' have now been held to be entitled to a share of the compensation, on the basis of two civil proceedings initiated by Sarbananda Roy.

(i) Sarbananda Roy filed Title Suit No. 183 of 1978 against the khatiandars Alokesh Barua and another as defendants, seeking declaration of right, title and confirmation of possession and for correction of records of rights in respect of the suit land. In the said suit initiated by Sarbananda Roy, it was contended by the defendants that the suit is bad, inter alia, for non-joinder as defendant, the State of Assam, which has not been arrayed as defendant. Against this contention of the defendants, Mr. B.N. Brahma, learned advocate for the plaintiff Sarbananda Roy submitted that the plaintiff is seeking no relief against the State of Assam and as such State is not a necessary party to the suit. Since no relief is sought against State of Assam, the State would not be affected by the decree which may be passed in the suit filed by Sarbananda Roy.

On the possessory right as a tenant of lands under the defendants/khatiandars claimed by the plaintiff Sarbananda Roy, the learned Munsiff No. 2, Dhubri observed in his judgment dated 16.7.1979 that the land covered by dag Nos. 77 and 78 are possessed by the plaintiff but the land covered by dag No. 389 is possessed by Nishi Kanta Roy, the brother of the plaintiff, who has not been made a party to the suit.

Accordingly the learned trial Court held that the plaintiff Sarbananda Roy has no right to land covered by dag No. 389 and that the plaintiff is entitled to have the record of rights corrected in respect of the land under dag No. 78 only. The learned trial court further held that the plaintiff Sarbananda Roy is not entitled to get the records of rights corrected in respect of land covered by dag Nos. 77 and 389 as the same has already been acquired by the Government of Assam for setting up of the Gouripur market. On the basis of the aforesaid finding the Title Suit No. 83/78 filed by Sarbananda Roy as plaintiff was partly decreed on 16.7.1979. By the said decree, Sarbananda Roy is declared to be entitled to get the records of right corrected in respect of the land covered by dag No. 78 only. The respondents 5(a) to 5(f) the 'SARBANANDAS' are now claiming the right as may be available to their father Sarbananda Roy, as claimants.

(ii) The second case which was relied upon by the respondents 5(a) to 5(f), 'SARBANANDAS' for getting a portion of the compensation on the acquired land, was the Title Suit No. 58/80. This suit was also filed by Late Sarbananda Roy, the father of respondents 5(a) to 5(f), which was considered by the learned Assistant District Judge, Goalpara. Late Sarbananda Roy filed this second suit for a declaration of his right, title and interest in the matter of award, sanction and compensation for acquisition of land mentioned in Schedules B and C of the plaint. The plaintiff also prayed for a declaration that the 'Khatiandars' Alokesh Barua and two others who were made defendants in the case have no right, title and interest in the suit land. The defendants khatiandars although filed their written statement to contest the suit, did not later on participate in the proceeding and eventually the suit was taken up ex parte against the defendants. The plaintiff Sarbananda Roy deposed as PW-1 in the court and referred to the earlier decree dated 16.7.1979 obtained by him in Title Suit No. 183/78 and claimed that he is entitled to compensation in respect of dag Nos. 77 and 389. The judgment and decree dated 16.7.1979 was exhibited as exhibit-1 in Title Suit No. 58/80.

By considering the evidence adduced by the plaintiff Sarbananda Roy the learned Assistant District Judge in his judgment and decree dated 3.2.1984 held that the plaintiff Sarbananda Roy is entitled to get compensation in respect of land covered by dag No. 77 and dag No. 389. In this proceeding also Sarbananda Roy did not make the Government of Assam as a party defendant as was omitted to be done in the earlier Title Suit No. 58/80 filed by him.

7. As regards the claim of the appellant Saralabala Roy for a portion of compensation for the acquired land, it may be noted that Saralabala Roy has also staked her claim by claiming herself to be a tenant under the khatiandars. But unlike the 'SARBANANDA' Group, Saralabala Roy staked her claim right since the time the start of land acquisition proceeding and in fact her name was recorded in the certificate of possession as on 14.6.1977 in the land acquisition case. Additionally, the appellant Saralabala Roy as plaintiff also filed Title Suit No. 512/80 against the Government of Assam and three others (Khatiandars) for declaration of title, confirmation of possession and correction of records in respect of the suit land. She claimed that the land was under the possession of her father Late Nishi Kanta Roy and the plaintiff claimed to have inherited all the rights of her father on the said land as the sole heir of Late Nishi Kanta Roy. Title Suit No. 512/80 was initially dismissed by judgment and decree dated 5.9.1985. The matter was taken on appeal by the plaintiff Saralabala Roy and the learned Assistant District Judge, Dhubri by his judgment and decree dated 17.11.1987 gave a finding that the land under dag Nos. 76, 77, 385 and 78 under khatian No. 65 was in the name of Nishi Kanta Roy the father of the plaintiff Saralabala Roy and that the plaintiff was a tenant under the defendants khatiandars. It was further found that after the death of Nishi Kanta Roy who was a tenant under the defendant khatiandars, the plaintiff Saralabala Roy has been possessing the suit land. The learned District Judge further gave a finding that at the time of acquisition of 5 and 1/2 bighas of suit land for the purpose of construction of Gouripur market, the plaintiff Saralabala Roy had right, title as occupancy tenant over the said acquired land. The learned Assistant District Judge further held that the plaintiff Saralabala Roy, has current right and title over 2 bighas 0 Katha 17 lechas of land under dag No. 78 which has not been acquired. Further in respect of other 5 and 1/2 bighas of land covered by other dag numbers and subjected to acquisition proceedings, no relief can be granted to the plaintiff by the court as the court does not have any jurisdiction to decide on question of compensation in the said proceeding. The learned District Judge also found that the suit of the plaintiff was wrongly dismissed by the learned Munsiff without consideration of the report of the Amin Commissioner, which has not been challenged by any of the parties. The report of the Amin Commissioner referred to by the learned District Judge was to the affect that the lands under dag Nos. 76, 77, 389 and 78 under khatian No. 65 was recorded in the name of Nishi Kanta Roy, the father of the appellant and that the appellant was a recorded tenant under the khatiandars/defendants. Accordingly, the learned District Judge allowed the appeal filed by Saralabala Roy by setting aside the judgment and decree dated 5.9.1985 in Title Suit No. 512/80 and granted relief to Saralabala Roy for declaration and correction of records in respect of 2 bighas 0 katha 17 lechas of land covered by Dag No. 78

8. By the impugned order dated 25.8.1994, the learned Additional District Judge., Dnubri on a reference under Section 30 of the Act held thak since, SaralabalA Roy in the Title Appeal No. 119/85 has got her tenancy rights declared only in respect of dag No. 78, which was not acquired, she can have no right, title and interest in respect of the 5 and 1/2 bighas of acquired land covered by dag. Nos. 76, 77 and 389. However, the impugned order did not take note of the other relevant finding recorded in favpur of the appellant to the enectinat the plaintiff has been able to prove that her. father Nishikanta Roy held the suit land as tenants under defendant Nos. 2, 3 and,4 and after his death, the only daughter Saralabala Roy inherited the land and possessed the same. The further finding of the learned court that at the time of acquisition of the 5 and 1/2 bighas of land for the purpose of Gouripur super market the plaintiff Saralabala Roy had right and title as occupancy tenant over the acquired land was also ignored in denying compensation to SARLABALA. Thereference court, thus, ignored some vital findings of the judgment and decree dated 25.8.l994 in Title Appeal No. 119/85, while, passing the impugned, judgment. Consequently the appellant was wrongly held to be disentitled to, the award of compensation in the impugned judgment dated 25.8.1994.

9. The learned District Judge on the other hand held that “SARBANANDAS” the respondents 5(a) to 5(f), were entitled to apportionment of compensation along with the khatiandars in respect of land covered by dag Nos. 77 and 389 on the basis of the findings in judgment and decree dated 16.7.1979 in Title Suit No. 183/78. While relying upon the aforesaid judgment and decree in Title Suit No. 183/78, the learned Additional District Judge, Dhubri did not take into account the waiver submissions made on behalf of the plaintiff Sarbananda Roy by his learned Counsel Mr. B.N. Brahma that Sarbananda Roy is not claiming any relief against the State of Assam. It was clearly overlooked that only by making the said concession, the plea of the private defendants for rejection of the suit for non-joinder of State of Assam as a defendant, was resisted by the Sarbananda’s lawyer.

It has been pointed by Mr. Jayanta Deka, the learned Counsel for the appellant that in both the suits filed by Sarbananda Roy, that father of respondents 5(a) to 5(f) in the present proceeding, the State of Assam was not made a party and reliefs in the two suits were claimed only against the khatiandars/defendants. Accordingly, it is submitted that the decrees are not binding and executable against the State Government but could be executable only against the khatiandars defendants. For this proposition the appellant's counsel relies on the case of Mahantam Kr. Pandit v. Pannalal Ghosh and Ors. reported in 2002 (1) GLT 124 Paragraph 19. Additionally it is submitted that as Sarbananda Roy, the plaintiff waived his right against the State of Assam, the judgment dated 3.2.1984 in the later suit is hit by order 2, Rule 2 of the Code of Civil Procedure. Confusion created as regards land under dag No. 389 were also brought to the notice of this court. In the first suit, Sarbananda Roy’s claim over dag No. 389 were not entertained whereas in the second suit right and title over dag No. 389 was declared in favour of Sarbananda Roy. Accordingly it has been submitted that the judgments and decrees in the said two civil suits do not deserve any credence for giving relief to the “SARBANANDAS”.

The counsel of the appellant has also drawn attention of this court to ground No. VI in the Memo of Appeal which are in the following words:

For that the learned Judge completely overlooked the fact that since the acquisition of the land in the year 1976-77 that predecessor of respondent Nos. 5(a) to 5(f) late Sarbananda Roy never came to claim the compensation prior to the year 1991. The name of late Sarbananda Roy does appear in the certificate of possession, the compensation was never claimed by him before the Collector in proceeding under Section 11 as well as in reference under Section 18 of the Land Acquisition Act before the District judge and further it was the appellant who had contested the F.A. No. 43 of 1984 and F.A. No. 44 of 1984 preferred by the Collector, Goalpara against the award dated 11.05.1983 given by the District Judge, Dhubri in reference under Section 18 the Land Acqusition Act.

The contention advanced on the basis of the basis of the said ground taken is that Sarbananda Roy, the father of respondent Nos. 5(a) to 5(f) never contested the land acquisition proceeding at any stage prior to Misc. (LA) Case No. 93/1991. Further the father of these respondents has waived his claim against the State of Assam in the two suits initiated by him and referred to hereinabove. A further contention is advanced that the case of the “SARBANANDAS” cannot be considered in a reference under Section 30 of the Act as these respondents and their deceased father were not a party before the Collector.

10. I have taken note of the contentions raised by the appellant and the respondents though their learned, counsels. I have also taken note of the arguments advanced by Mr. D.C. Mahanta, learned senior counsel representing the respondents who submits that the present being a statutory appeal the interference of the court is called for, only when the court is of the view that the reference court has committed an error requiring interference in the present appeal.

In reference to the above submission, this court is of the view that while examining the correctness of an order passed by reference court under Section 30 of the Land Acquisition Act on apportionment of compensation money, this court, while considering a statutory appeal may not interfere with an order only because it is possible to reach a different conclusion on the basis of the materials available before the Court. However, this court can always examine the correctness or otherwise of an award given, by examining whether the reasons given for passing of an order of apportionment of compensation is vitiated on wrong application of principle or on misapplication on some important points affecting the rights of the parties. In short the appellate court is required to intervene when it appears that the impugned order is not right on the basis of the reasoning given.

11. Now going on the merits of the claims of the 'BARUAS', the 'SARBANANDAS' and 'SARLABALA' it may be kept in mind that there is no dispute in the bar that respondents 2(a), (b), (c), 3 and 4(a), (b) and (c) were the khatiandars in respect of khatian No. 65 a part of which land has been acquired for setting up of Gouripur Town market. Accordingly, the right of the 'BARUAS' to receive compensation is not in dispute nor any serious attempt is made by the learned Counsel for the appellant to dispute the right of the khatiandars to a share in the compensation.

Insofar as the claim of the two groups of tenants who are closely related, I am of the opinion that the learned Additional District Judge misdirected himself while considering the judgment and decrees relied upon by the 'SARBANANDAS' and 'SARLABALA'. Relevant findings of the civil court decrees have been overlooked by the learned District Judge. In so far as the 'SARLABALA' is concerned, the learned Judge erred in denying the benefit of compensation to her as a tenant of the land acquired, despite records being available to show that 'SARLABALA' has been in possession of a portion of the acquired land, long before the acquisition proceeding started through her predecessor in interest Sashi Kanta Roy who is her father and is definitely a person interested in the matter. She has all along been vigilant about her rights and has staked her claim at every stage of the acquisition proceedings and was wrongly held to be disentitled to a share in the compensations.

The abandonment of any claim for relief against the State Government by the learned advocate for the plaintiff Sarbananda Roy during the proceeding of Title Suit No. 183/78 have been wrongly overlooked and accordingly the learned Additional District Judge incorrectly accepted the entitlement of compensation of the 'SARBANANDAS', the legal heirs of deceased Sarbananda Roy, on the basis of the judgment and decree in Title Suit No. 183/78.

12. In view of the above reasoning, I am of the considered opinion that the present appeal deserves to be allowed. Accordingly, the impugned judgment dated 25.8.1994 in Misc. (LA) Case No. 93 of 1991 passed by the learned Additional District Judge, Dhubri is set aside. The case is remanded back to the learned court below for adjudication afresh on the claim for apportionment of compensations in the light of the observations made hereinabove.

Considering the long pendency of this proceeding, efforts should be made by the learned court for an early adjudication of the matter. Transmit the records forthwith.

No costs.