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PETITIONER: ABDUL KUDDUS MONDAL AND OTHERS

       Vs.

RESPONDENT: STATE OF ASSAM AND ANOTHER

DATE OF JUDGMENT:       23/08/1999

BENCH: R.C.Lahoti, N. Santosh Hegde

JUDGMENT:

     The   application,  for  bringing   on  record   legal representatives  of  petitioner  NO.2,  is  allowed.   Legal representatives are brought on record.  They are present and represented.

     Delay condoned.

     Leave granted.

     This   appeal   arises  out    of   land   acquisition proceedings.   The  preliminary Notification  under  Section 6(1)  of  the  Assam Land (Requisition etc.) Act,  1964  was issued  by  the Collector, Dhubri and possession of  subject land  was  taken over by the Collector on 7th  March,  1988. The  Land Acquisition Collector made an Award in the case of the  appellants  whereby land was assessed @  Rs.3804/-  per Bigha  of Basti/ Sali and Rs.15,953/- per Bigha of Road side land/  trade site land.  The appellants were also awarded  a sum  of Rs.15,087.10 for demolition and removal of the malba of  the  houses  belonging  to the  appellants,  which  were standing  on  that land.  The total Award made in favour  of the  appellants  on  2nd  April,  1991  was  for  a  sum  of Rs.46,118.40  including compensation for Zirut.  The  amount was   accepted  by  the   appellants  under  protest.    The appellants  sought a Reference under Section 18 of the  Land Acquisition   Act,  1894.   Evidence   was  led  before  the Reference Court of the learned District Judge, Dhubri by the parties.   After  examination of the evidence,  the  learned Reference  Court determined the market value of the land  at Rs.36,600/-;  value of the houses at Rs.1,88,000/-;  damages on  account of removal of houses at Rs.15,087.00;   interest on  the  difference  on  the amount of  Award  made  by  the Collector from the date of possession of the land i.e.  with effect  from 7th March, 1988 @ 9 % per annum and Solatium  @ 30%  on  the  market  value  of the  land.   The  amount  of compensation, on account of Zirut, as made by the Collector, which  was included in the detailed Award, was upheld.   The order of the Reference Court dated 22nd August, 1994 was put in  issue  by the State before the Gauhati High Court.   The appellants also filed cross-objections in the High Court and sought   enhancement  of  the   compensation  fixed  by  the Reference Court.  The Division Bench of the High Court, vide order  dated 7th February, 1996, while directing respondents

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to  deposit 50% of the amount awarded by the District Judge, Dhubri  alongwith interest calculated till 30th April, 1996, permitted   the  appellants  to   withdraw  the  amount   so deposited.   The appeal was finally disposed of by the  High Court  vide  order  dated 13th August, 1998.   The  Division Bench  fixed  the rate of the compensation for the  acquired land  at Rs.20,000/- per bigha.  Insofar as compensation for the  houses is concerned, the same was completely  negatived and  instead a sum of Rs.37,000/- being 20% of the valuation of  the  houses fixed by the District Court was  awarded  as just  and proper compensation towards the loss and  removal costs  of  the  houses.  The directions regarding  rate  of interest  and  solatium  were not interfered  with  nor  was compensation  for Zirut upset.  The appellants have put  the order of the High Court in issue.

     We have heard learned counsel for the parties.

     It appears to us that the High Court fell into a basic error  in  not awarding compensation for the houses  on  the ground  that  since  land  had been  acquired,  it  is  only compensation  for removal of houses standing thereon,  which could  have  been  granted  because   houses  had  not  been acquired.  That is not a correct approach.  The compensation was required to be paid for the houses which was standing on that  land.   The land could not have been acquired  without the  houses  standing  thereon.   The  Reference  Court  had rightly  awarded compensation for the houses.  The order  of the  High Court on this account suffers from apparent error. Insofar  as  the  reduction  in   the  rate  for  land  from Rs.36,600/-,   as   awarded  by   the  Reference  Court   to Rs.20.000/- per Bigha by the High Court is concerned, we are not  persuaded  to  disagree because we have not  found  any error  to  have  been committed by the High  Court  in  that behalf.  The High Court has not adverted to the compensation on  account of Zirut separately, though compensation on that account  had been awarded by the Land Acquisition  Collector and  upheld  by  the  Reference Court.   In  the  facts  and circumstances  of this case and keeping in view the material on  the record, more particularly the evidence of the expert who  had  valued the houses belonging to the appellants,  we are of the opinion that while the appellants are entitled to compensation  for land @ 20,000/- per Bigha, the  appellants are  also  entitled to compensation towards cost of  houses. The cost of houses was calculated by the Reference Court, on the basis of expert evidence, at Rs.1,88.000/-.  Taking into account  proper calculations, in our opinion, the appellants are entitled to receive Rs.1,70,000/- towards cost of houses and  not Rs.1,88,000/-.  Since, we are allowing the cost  of houses, the question of grant of damages and compensation of Rs.15,087/- for removal of houses does not arise.  The order to  that  extent is set aside.  Besides, the appellants  are also  entitled to a sum of Rs.10,000/- for Zirut.  So far as interest  is  concerned, the interest at the rate of 9%  per annum  shall  be so calculated as to take into  account  the amount already deposited by the State in the Executing Court under  orders of the High Court, which amount was allowed to be  withdrawn  and  has  actually   been  withdrawn  by  the appellants.   The  interest shall, therefore, be  calculated only  on  the differential amount for the  remaining  period from  the  date of possession of the land by  the  Collector i.e.   7.3.1988.   The  appellants   shall  be  entitled  to Solatium at the rate of 30%.

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     With  the  aforesaid modification of the order of  the High Court, the appeal is disposed of.  No costs.