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Judgment
B.N. Sarma, J.—By this judgment we propose to dispose of two applications under Article 226 and/or Article 227 of the Constitution of India directed against the order of the District Judge at Jorhat dated 30-11-1973 passed in Misc. Case Nos. 23 and 24 of 1974 which arose out of two applications u/s 18 of the Land Acquisition Act, 1894 and were heard analogously. By the impugned order the learned District Judge directed the parties to adduce further evidence before him to enable him to determine the value of the acquired lands as a Tea Estate. The relevant facts may be stated, in brief, as below.
Under five different Notifications u/s 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) -- all dated 9-1-1967, the Government of Assam acquired in all 1077 bighas 1 katha 17 lechas of land situate at several villages, namely, Bamchuk, Rangaihabi, Chutiakari and Nawsalia in mauza Charaibahi and village Saliha in mauza Khangia, near Jorhat town, for defence purpose, Similarly, five declarations u/s 6 of the Act were issued on 19-6-1967 -- and duly published in the Assam Gazette. The Collector started Land Acquisition Case No. 21 of 1965-66 relating to all these Notifications. Of the acquired lands the Rowriah Estates Private Ltd.--petitioner in Civil Rule No. 26 of 1974 (hereinafter referred to as the petitioner company) claimed 1072 B. 3 k. 8 lechas of land including the trees and buildings thereon as comprised in their tea estate known as Rowriah Tea Estate and claimed compensation to the tune of Rs. 1,18,06,540/-. Shri Muralidhar Barua -- petitioner in Civil Rule No. 25 of 1974 (hereinafter referred to as Shri Barua) claimed an area of 4 b. 3 k. 9 lechas of land with the buildings standing thereon and he claimed Rs. 1,04,305/- as compensation. After due enquiry, (he Collector, by his award dated 20-9-1969, awarded total sum of Rupees 6,74,095.50 as compensation to the petitioner Company for its lands, buildings and trees. Shri Barua was awarded a sum of Rs. 13,800/-as compensation for 3 bighas of land, comprised in a periodic patta and another sum of Rs. 12,080.75 p. for the house standing therein. No compensation was awarded in respect of 1 B. 3 k. 9 lechas of land which was covered by an annual patta. Being aggrieved by the award of the Collector, both the petitioners filed two separate applications u/s 18 of the Act and the Collector referred the same to the District Judge at Jorhat for determination of the compensation.
In the Court of the District Judge the application u/s 18 filed by Shri Barua was registered as Misc. Case No. 23 of 1970 and the application of the petitioner Company was registered as Misc. Case No. 24 of 1970. Both the cases were taken up for hearing together. The petitioners examined as many as 12 witnesses and proved a number of documents before the District Judge, in support of their case. The Collector also examined one witness.
After the evidence was closed the learned District Judge started hearing arguments in the cases from 28-11-1973. In course of his argument on 29-11-1973 the learned Government Advocate raised a contention that in the acquisition proceedings the entire Rowria Tea Estate was acquired as a unit and not the lands of the tea estate and, therefore, compensation should be awarded on that basis. In spite of serious objections from the Learned Counsel for the petitioners the learned District Judge, after having gone through certain unproved documents in the file of the Collector, accepted the contention of the learned Government Advocate and by his order dated 30-11-1973 directed the parties to adduce further evidence for determination of the market value of the Tea Estate observing, inter alia, as below:
According to me though the language of Section 4 Notification and Section 6 Declaration is not very happy, the acquisition appears to be that of the Tea Estate as a unit, as ''Land'' within the meaning of Section 3(a) of the Act includes benefit to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth; and as such acquisition of a Tea Estate as a unit, which comprises of land, various structures on it, tea bushes etc. may not be excluded from the operation of the Act. The parties had also understood it that way. Sri Bhattacharjee had objected to the reference by this Court to the correspondence between the parties which is in the record of the Land Acquisition case of the Collector. I had, however, done so to ascertain the meaning to be given to the language used in Section 4 Notification and Section 6 Declaration.
There being no evidence, however, before this Court as what could be the valuation of the Tea Estate as such, or that of a similar Tea Estate, I have found it difficult without further evidence on record to determine market value of the Tea Estate. 1 nave, therefore, thought it fit in the interest of justice, to give opportunities to both the sides to lead further evidence on the above point, if they so choose.
Being aggrieved by the aforesaid order of the learned District Judge the petitioners have come up with the present applications under Article 226 and/or Article 227 of the Constitution of India alleging, inter alia, that the learned District Judge acted beyond his jurisdiction in directing the parties to adduce further evidence for determination of the amount of compensation on the assumption that the Tea Estate, as a unit, was acquired.
Counter affidavits have been filed on behalf of the respondents in both the Civil Rules denying that the District Judge has committed any error in law or that he had gone beyond his jurisdiction in passing the impugned order.
Mr. J.P. Bhattacharjee, the Learned Counsel for the petitioners contended before us that the learned District Judge committed an illegality apparent on the face of the record and went beyond his jurisdiction in proceeding to take further evidence in the case to ascertain the amount of compensation on the assumption that Rowriah Tea Estate as a unit was acquired. According to him under the scheme of the Act there is no scope to determine the compensation on such assumption.
On examination of the scheme of the Act and the method of determination of compensation, as laid down in the Act, we find that there is sufficient force in the contention of Mr. Bhattacharjee.
As provided in Section 3(a) of the Act, the expression ''land'' includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth. Section 4(1) provides that whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose, a Notification to that effect shall be published in the official Gazette and the Collector shall cause public notice of the substance of such Notification to be given at convenient places in the locality concerned. Section 9 of the Act provides that the Collector shall, after the land is acquired cause public notice to be given at convenient places at or near the land to be taken, stating that the Government intends to take possession of the land and that claim to compensation for all interests in such land may be made to him. Section 23 of the Act lays down the matters to be considered by the Collector, or for that matter by the Judge, in determining compensation for the acquired land.
In the scheme of the Act we do not find any scope for acquiring any tea estate or any other estate, as an estate. What is acquired is land. In determining the compensation for such land the Collector, or for the matter of that the Judge, is to determine the market value of the land; the damage sustained by the person interested by reason of taking any standing crop or trees which may be on the land at the relevant time; the damage sustained by the person interested at the time of the Collector''s taking possession of the land, by reason of severing such land from his other land; the damage (if any) sustained by the person interested at the time of the Collector''s taking possession of the land by reason of the acquisition injuriously affecting his other properties movable or immovable in any other manner, or his earnings; if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business the reasonable expenses (if any), incidental to such change and the damage (if any) bona fide resulting from diminution of the profits of the land, at the time of the publication of the declaration u/s 6 and at the time of the Collector''s taking possession of the land.
If any estate is acquired as a unit there can be no scope for determining the compensation in accordance with the provisions of Section 23.
The use to which the land might be put at the time of acquisition is not very material for the purpose of determination of the compensation. What is material is the uses to which such land is reasonably capable of being put in the future. We may usefully refer here to the observation of the Privy Council in AIR 1939 98 (Privy Council) which is as below:
In the case of land, its value in general can be measured by a consideration of the prices that have been obtained in the past for land of similar quality and in similar positions, and this is what must be meant in general by "the market value" in Section 23. But, sometimes, it happens that the land to be valued possesses some unusual, and it may be, unique features, as regards its position or its potentialities. In such a case the arbitrator in determining its value will have no market value to guide him, and he will have to ascertain as best he may from the materials before him, what a willing vendor might reasonably expect to obtain from a willing purchaser, for the land in that particular position and with those particular potentialities. For the land is not to be valued merely by reference to the use to which it is being put at the time at which its value has to be determined (that time under the Indian Act being the date of the notification u/s 4(1)) but also by reference to the uses to which it is reasonably capable of being put in the future. It is the possibilities of the land and not its realized possibilities that must be taken into consideration.
In view of the relevant provisions of the Act and the decision of the Privy Council as mentioned above there can be no scope for determination of the compensation for the acquired land as a Tea Estate. If a tea estate is to be acquired as an estate, resort must be had to some other legislation. It cannot be acquired under the Land Acquisition Act, 1894.
Be that as it may, it is evident on the face of the record that the lands were acquired and not the estate as a unit. The acquisition was made not under one Notification u/s 4(1) different areas were acquired under five different Notifications. Similarly there were five declarations u/s 6 of the Act. There is not even a mention about any Tea Estate in any of these Notifications. It is stated in para 13 of the writ petition that the Tea Estate comprised an area about 1200 bighas of land approximately, out of which only 1077 B.1 K.17 lechas of land was acquired leaving a balance of more than 100 bighas. This statement has not been controverted. The lands were acquired, as these were required for defence purpose. The District Judge had no jurisdiction to go behind the Notifications issued by the Government and to assume with reference to some unproved documents that the Tea Estate was acquired as a unit. The Learned Counsel appearing for the respondents, in his argument, could not controvert the contention raised on behalf of the petitioner to our satisfaction.
In the result we quash the impugned order of the learned District Judge dated 30-11-1973 in exercise of our powers under Article 227 of the Constitution of India and we direct the learned District Judge to dispose of the case by determining the compensation in accordance with the provisions of Section 23 of the Act in the light of the observations made hereinabove. Both the applications are allowed and the Rules are made absolute. In the circumstances of the case, we, however, leave the parties to bear their own costs.
K. Lahiri, J.
I agree.