Collector of Monghyr vs Bhekdhari Mander and Others

Harries, C.J.—This is a first appeal by the Collector of Monghyr from a judgment in a reference u/s 18, Land Acquisition Act. It appears that proceedings were commenced for the compulsory acquisition of 9.195 acres of land in village Nayagaon, Pargana Monghyr, which was required for remodelling the railway station yard of Jamalpur. The area of land is equivalent to 27 bighas 16 kathas 6 dhurs. The Collector u/s 11 of the Act awarded to the tenants compensation for the lands amounting to Rs. 21,414-1-0 and Rs. 200 for a well together with additional compensation amounting to Rs. 3242-1-0 at the statutory rate of 15 per cent. The total compensation awarded, therefore, to the tenants amounted to Rs. 24,856-2-0. The landlord was also awarded compensation; but he has accepted the award, and we are not concerned with the amount granted to him.

The tenants objected to the award on the ground that the lands were in close proximity to Jamalpur railway station, and that being so, the tenants contended that the land was valuable building land and that the compensation awarded was wholly inadequate. They also objected to the amount of compensation awarded for the well, namely Rs. 200. The Collector in due course made a reference to the learned District Judge, and the matter was heard and determined by him. The learned District Judge was of opinion that the compensation awarded by the Collector to the tenants was not sufficient, and he increased the compensation for the land to a sum of Rs. 28,862-6-8 and for the well to a sum of Rupees 350, making a total of Rs. 29,212-6-8. This sum together with 15 per cent., which is allowed for compulsory acquisition, came to Rs. 33,594-4-0. The District Judge ordered that a sum of Rs. 8738-2-0, which is the difference between these two sums, should be paid to the tenants as additional compensation.

The Collector of Monghyr preferred the present appeal which has been argued by the learned Advocate-General. He has contended that the amount awarded by the Collector was sufficient and that the learned District Judge was wrong in valuing this land as building land. He has pointed out that the land in question is occupancy land and that the tenants had no right to sell it as building land without the sanction of the landlord.

It appears that the Collector valued this land by taking the average sale price of a number of kobalas relating to occupancy lands.

The Collector appears to have obtained this information from the registration office, but these kobalas were not produced in the Court of the District Judge and no evidence was given as to the situation of the lands which were the subject-matter of these kobalas. There is nothing on the record to show that the kobalas upon which the Collector relied, related to lands anywhere in the vicinity of the lands in question in this case.

On the other hand, the petitioners produced a number of kobalas relating to land in close proximity to the land which was acquired in these proceedings. These kobalas went to show that the rate per katha granted by the Collector, which was Rs. 66-4-0, was too low and that the rate should have been well over Rs. 100 per katha. These kobalas produced by the petitioner, however, refer to homestead lands and not to occupancy lands. They refer to lands which the tenants could sell as building lands without obtaining the consent of the landlord or without paying any salami. They were lands which could be disposed of by the tenants as building lands without objection by anyone and without anyone having any right whatsoever to any part of the proceeds.

The present lands, however, being occupancy lands, could not be so freely disposed of as building lands. The landlord''s consent to such a sale would be essential, and salami would be payable to him. Accordingly the learned Advocate-General has argued that the rate per katha shown in the various kabuliyats produced and proved by the petitioners form no guide for valuing the present land.

It is clear from a perusal of the judgment of the learned District Judge that no suggestion was made in the Court below that the petitioners in this case could not freely dispose of the lands in question as building lands. Bhekhdhari Mandar, who is a son of one of the petitioners, gave evidence. He stated that the land acquired was near Jamalpur railway station and that he would not sell it under Rs. 125 per katha. He then mentioned that the land acquired was on a high level and was fit for residential purposes. If there was any doubt as to whether the petitioners could sell this land for residential purposes, then this witness should have been cross-examined about it. There was nothing in the cross-examination which went to show that the petitioners could not have sold this land as building land.

It appears to have been assumed in the Court below that the landlord in this case would have raised no difficulty and that the tenants would have been allowed to retain the major part, if not the whole of the consideration of the sale of the land for building purposes. Had the argument now put forward by the learned Advocate-General been put forward in the Court below, reference would undoubtedly have been made to it by the learned District Judge. However, the latter deals with the question on the assumption that the tenants in this particular case sell the land without let or hindrance as building land. In my view as the case for the petitioners was never challenged upon this point, the Collector cannot now allege that the land was not saleable as building land as alleged and conceded in the Court below.

In my judgment the learned Judge was right in treating this land as building land and valuing it as such. The value of the land together with all its advantages must be considered, and it is no answer to the petitioners'' claim to say that the land was used purely for agricultural purposes. The land was on a high level and apparently suitable for building purposes. It was near the village of Nayagaon and also adjacent to the Jamalpur railway station. That being so, it was clearly building land and was rightly valued as such. The kobalas produced by the tenants showed a higher rate than Rs. 100 per katha. The learned District Judge, however, was of opinion that for the particular land in question Rs. 100 per katha was a fair valuation. He rightly points out that the land in dispute was situate in a triangle formed by two railway lines.

The close proximity of these two railway lines and the shape of the land in question undoubtedly reduced its value. The learned District Judge took that into account and valued the land, as I have stated, at Rs. 100 per katha. In my judgment having regard to the prices obtained for land in the vicinity of this land it cannot be said that Rs. 100 per katha is unreasonable. It appears to me to be a fair valuation of the land in this area.

The learned District Judge also increased the value of the well. The well, as I have stated, was valued by the Collector at Rs. 200, It was a pakka well 30 feet deep and 6 feet in diameter. The valuation of Rs. 350 placed upon this well by the learned District Judge is, in my view, a reasonable one and cannot be seriously challenged. I wish to make it clear that in cases of this kind the Collector must prove the kobalas upon which he relies. Evidence in the present case should have been given on behalf of the Collector as to where the lands, which were the subject-matter of the kobalas, were situate, and the kobalas themselves should have been produced and proved, if not admitted by the petitioners. The Collector cannot rely upon any statement in his award that the amount awarded per katha is based upon the average price per katha contained in a number of kobalas.

In cases of this kind the Collector is a defendant and has to support his award, and he must do so by producing evidence and establishing the facts upon which he relies. In the present case there was no evidence whatsoever before the learned District Judge relating to the situation or nature of the lands the price of which the Collector relied upon.

For the reasons which I have given, I am satisfied that no ground has been made out for interfering with the decision of the learned District Judge and I would accordingly dismiss this appeal with costs.

Manohar Lall, J.

I agree.