Suresh Kumar Jain and Others vs Substituted by Legal Heirs Saraswati Kumar and Others

This appeal u/s 54 of the Land Acquisition Act, 1894 has been preferred controverting the judgment and award dated 1.10.1986 passed by the Assistant District Judge No. 2 at Guwahati in Misc (Ref.) Case Nos. 43, 44, 45, 46 & 47 of 1983 arising out of the award given by the Collector in Land Acquisition Case No. 20 of 1980.

A plot of land measuring 40 Bighas of village Dwarandha in Beltola Mouza was acquired by the State Government vide Notification No. RLA. 3/80/7 dated 9.9.1980 and Declaration No. RLA. 3/80/11 dated 24.10.1981. The possession of the land was taken over by the Collector on 8.12.1981.

Respondent No. 1 Kuladhar Kumar, since deceased and now represented by his legal heirs, laid his claim for apportionment of compensation amount as tenant in respect of 1 Bigha 4 Kathas and 11 Lechas out of Dag No. 534 of Kheraj Periodic Patta No. 177. The Collector made an apportionment of a sum of Rs. 14,826.37 paise on favour of Respondent No. 1.

Another plot 1 Bigha 3 Katha 6 Lechas of Nisfikheraj Patta No. 2 in the same village was taken on lease by the appellants from Basistha Devalaya authorities and thereafter they purchased the occupancy right from the Respondent No. 1 and revenue records were corrected accordingly showing the appellants as occupancy tenants. This plot of land was also acquired by the Government under the Assam Acquisition of Land belonging to Religious and Charitable Institutions of Public Nature Act, 1959 and this plot of land was erroneously shown under Dag No. 210 of Annual Patta Land No. 43 without the knowledge of the appellants and in violation of the provisions of section 15 and 16 of the said Act. The Collector, while passing the award ordered deduction of Rs. 3361.50 paise from each of the appellants as premium for conversion of this land to periodic patta without hearing the appellants.

The collector on being moved by the appellants referred the matter to the Court u/s 18 of the I and Acquisition Act, 1894. Misc (Ref) Case Nos. 43, 44, 45, 46 & 47 of 1983 were registered. The learned Assistant District Judge vide judgment and award dated 1.10.1986 enhanced the compensation amount but upheld the aforesaid two orders relating to apportionment and deduction of premium. Aggrieved thereby, the appellants have preferred this appeal.

Heard Mr. K.R. Pathak, learned counsel for the appellants and Mr. P. Khataniar, learned counsel for the respondents.

First, let us deal with the validity and propriety of the order relating to apportionment. The claims of Kuladhar Kumar, since deceased, is based on tenancy over 1 B-4K-11 L of land acquired under Land Acquisition Act, 1894. Section 11(1) of the Act of 1894 provides for apportionment by the Collector. As the award of apportionment was disputed, it was referred to the Court of L.A. Judge u/s 30 of the said Act for a decision. The learned L.A. Judge dealt with this question in paras 10, 11 and 12 of his judgment. The learned court below relying on the Chitha (Ext. A), Khatian (Ext.B), the order of the Assistant Settlement Officer (Ext.C) and the oral statement of Kuladhar Kumar came to the conclusion that late Kumar was a tenant in respect of 1B-4K-11 Lechas of land appertaining to Dag No. 534. On this finding, the learned L.A. Judge confirmed the order of the Collector for apportionment of the compensation amount.

It would appear that Exts. B and C which were "relied upon by the learned Land Acquisition Judge were prepared after the Notification of acquisition of land issued on 9.9.1980. but Ext.A (Chitha), nowhere shows Kuladhar Kumar as tenant. The last endorsement in the remarks column is dated 28.3.1978. This negates the claim of possession as tenant since twenty years back, tentatively corresponding to 1975, as claimed by him in his deposition recorded on 18.12.1975. Ext. B and C, read together, suggest that his name found berth in the Khatian corrected as per order dated 27.1.1981 passed by the Assistant Settlement Officer. The said order dated 27.1.1981 is based on presumption and it does not decisively prove the factum of possession. The doubt in this score is germane in the order itself. Hence, for better appreciation it is quoted below :

"27.1.1981 The objector Shri Kuladhar Kumar is present. The opposite party is not present. The objector filed objection seeking Khatian in respect of 1B-4K.11L of land in DAg No. 208/534 of Village Dwarandha, Mz Beltola. In this regard evidence of the objector and two of his witnesses are taken. The Opposite party is found absent on several dates and they have not filed any petition for their absence. So no statement of the opposite party could be taken. From the statement of the objector and his witnesses it appears that the objector has been enjoying the suit land, doing cultivation. The opposite party has not taken any step to eject them from possession. Although the objector has not made any written contract with the patta-holder yet it can be presumed that there is some contract as no step is taken to eject the objector. In view of the objections of the objector he is granted Khatian as occupancy tenant in respect of 1B-4K. 11L of land".

The order above for granting Khatian was on the face of it was passed in presumption. Therefore, the documents Exts. A, B and C in no way can be determinative of the claim of possession and tenancy. Ext. 5, the draft Khatian shows that the name of the tenant i.e. Kuladhar Kumar was struck off as per order dated 11.11.1980. That apart. Ext. 4, the order dated 10.11.1983 passed by the Settlement Officer, erasing off the names of all the tenants as the land in question fails within the limits of Gauhati Municipal Corporation sets at rest the controversy relating to tenancy considering the significance of this order on the issue at hand, we may have a look at it which is as below :-

"10.11.1983 Seen S.K''s report Area falls within the Gauhati Municipal Corporation. A.S. Government have modified the definitions of Town Land by enacting "The Assam Temporarily Settled Areas Tenancy (Amendment) Act, 1983 ; application filing of the Act cases in respect of the areas of G.M.C. Hence tenants nomes recorded in this case may be struck off and records corrected accordingly."

The above order dated 10.11.1983 was passed on the basis of the provisions of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 as amended by the Amendment Act of 1983 with retrospective effect i.e. from 5th March, 1973. The definition of the "town land" in Section 3(18) stood substituted by the Amending Act of 1983 in the following language :

"(18). ''Town Land" means by land (a) included in the limits of city of Gauhati as constituted and notified under the provisions of sub-section (1) of Section 42 of the Gauhati Municipal Corporation Act. 1969 (Assam Act I of 1973),

(b) that may be included further in the city of Gauhati from time to time under the provisions of sub-section (2) of Section 42 of the Gauhati Municipal Corporation Act. 1969,

(c) of any other town notified as a city under the provisions of any other Municipal Corporation Act for the time being in force,

(d) within an area declared or deemed to be a Municipality or notified area under the Assam Municipal Act, 1956 (Assam Act XV of 1957).

(e) any other land which the State Government may declare under the Assam Land and Revenue Regulation, 1886 or in accordance with the provisions of Section 3 of the Assam Land Revenue Re-Assessment Act. 1936 (Assam Act VIII of 1936)".

The substitution of the definition of ''town land'' as above exempted from the purview of the operation of the Assam (Temporarily Settled Areas) Tenancy Act, 1971 any land within the limits of the city of Gauhati. There being no dispute to the fact that the disputed land situates within the city of Gauhati, the order passed by the Settlement Officer on 10-11.1983 vide Ext. 4 cannot be faulted with, more particularly, when there is no challenge to the constitutional validity of the Amendment Act of 1983. Hence, the question of tenancy as per provisions of the Assam (Temporarily Settled Areas) Tenancy Act. 1971 does not arise.

Here, we may refer to a decision of the Supreme Court in Sunder Lal Vs. Paramsukhdas, referred to by the learned counsel for the respondent. The definition of ''person interested'' as interpreted in the said judgment is not in dispute. In fact, Kuladhar Kumar who claimed apportionment of compensation amount on the basis of tenancy was heard by. the Collector. Therefore, this decision cited at the Bar has no relevance to the dispute at hand. The learned counsel for the respondent also referred to another decision of the Apex Court in Chairman. Railway Board v. C.R. Rangadhamaiah & ors (1997) 6 SCO 623. It has been held by the Supreme Court that the Vested rights'' or ''accrued rights'' cannot be wiped off by giving retrospective operation of any law. But, this being an appeal u/s 54 of the Land Acquisition Act, 1894, the question of constitutional validity of the provisions of the Amendment Act of 1983 cannot be examined. The Court will have to confine its discussion on the basis of law as in force and the law do not admit of any claim of tenancy in respect of any land situated within the limits of Gauhati Municipal Corporation. That apart, the oral testimony of Kuladhar Kumar regarding possession of the land from 1975 without any supporting evidence being in glaring contrast with the official records and the law in force impels this Court to hold that both the learned Collector and the Land Acquisition Judge erred in law and in fact allowing apportionment of compensation amount.

Now, let us deal with the next issue concerning deduction of premium charges from each of the appellants in respect of 1B-3K-6 Lechas of Nisfikheraj Patta No. 2. The appellants stake their claim on this plot of land as tenant under the Basistha Dewalaya Authority and purchase of occupancy right from Kuladhar Kumar by a registered deed ''of sale executed on 25.5.1962. The Schedule to the Ext. 1, sale deed, shows that this plot of land was purchased by them for a consideration of Rs. 800. There appears to be no dispute to the fact that this land was in occupation of the appellants when possession thereof was taken over on 8.12.1981 by the Collector. This is also evident from the categorical statement made by PW 2, Lot Mandal. It is argued that since they have occupancy right over this land, the question of payment of premium does not arise. On this context, it has to be examined whether by virtue of the provision of Section 15 of the Assam State Acquisition of Land Belonging to Religious and Charitable Institution Act. 1961, the appellants are entitled to settlement without payment of premium.

Section 15 of the Assam Slate Acquisition of Lands Belonging to Religious or Charitable Institution Act, 1959 reads as follows :

"15. Settlement of acquired land with persons in occupation -Subject to the limitation prescribed u/s 4 of the Assam Fixation of Ceiling on I and Holding Act, 1956 (Assam Act I of 1957) where the land acquired under this Act is in occupation of a raiyat on the date of notification u/s 3, it shall be settled with him with the following status -

If he has acquired the status of an occupancy tenant under the Assam (Temporarily Settled Areas) Tenancy Act, 1971 (AssamACt XXIII of 1971) then the land in his holding shall be settled with him with the status of a land holder as defined in the Assam I,and and Revenue Regulation. 1886 and he shall upon such settlement be absolved from that the obligation, if any, of rendering services or making payment of'' bhog'' to the institution concerned in respect of his holding and if he has not acquired the status of an occupancy tenant then the land shall be settled with him with the status of a settlement-holder (other than the land-holder) as defined in the Assam Land and Revenue Regulation, 11886 (Regulation I of 1886).

Provided however that notwithstanding anything contained in the Assam Land and Revenue Regulation. 1886 the right of transfer of such holding shall extend only to persons belonging to the same religion as the institution in which the ownership of the land was vested before the date of notification u/s 3 of the Act."

It would appear from above that a raiyat in occupation of a plot of land is entitled to settlement thereof either as land-holder, if he has acquired the status of occupancy tenant under the Assam (Temporarily Settled Areas) Tenancy Act, 1971, or as settlement- holder if he has not acquired such status. Settlement of this plot of land to the appellants is to be made gibing them the status of settlement-holder as defined in the Assam, Land and Revenue Regulation, 1886 since the provisions of Assam (Temporarily Settled Areas) Tenancy Act, 1971 cannot be invoked in this case. Therefore, the question of payment of premium for conversion of the land as Periodic Patta Land does not arise. From this point of view, the order of the Collector for deduction of certain amount from each of the appellants as premium, which has been confirmed by the learned Land Acquisition Judge, cannot be sustained.

In the result, the appeal is allowed. The order of apportionment of compensation amount and the order for deduction of premium from the compensation amount are hereby set aside. The Collector is directed to consider the claim of the appellants for settlement of the land as per provisions of Section 15 of the Assam State Acquisition of Lands Belonging to Religious or Charitable Institution Act, 1959. The amount of compensation, held up, shall also be released forthwith.

No order as to cost.