Orissa High Court
Shashi Bhusana Duria vs The Special Land Acquisition on 30 November, 2021
Author: D.Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
LAA No.75 of 2017
Shashi Bhusana Duria .... Appellant
Mr.B.K. Beherea-1
Advocate
-versus-
The Special Land Acquisition .... Respondents
Officer, Lower Indra Irrigation Mr.G.N. Rout
Project, Khariar ASC
CORAM:
MR. JUSTICE D.DASH
ORDER
30.11.2021 Order Misc. Case No.174 of 2017 No.
05. 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode).
2. Heard.
3. Considering the submissions made and on going through the averments taken in the petition, the prayer for exemption of the Appellant in paying the court fee is allowed.
4. The misc. case is disposed of.
(D. Dash) Judge Order LAA No.75 of 2017 No.
06. 1. This is an Appeal under Section 54 of the Land Acquisition Act, 1984 (hereinafter called as 'the L.A. Act') in challenging the judgment/award dated 22.08.2017 passed by the learned Senior Civil Judge, Khariar in L.A.R. 79/36 - 2014/2017.
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2. The land belonging to the Appellant (Claimant) measuring Ac.1.18 decimal under four plots in one khata at village-Khariar has been acquired for construction of lower Indra Irrigation Project by notification dated 19.10.2006. The Land Acquisition Officer having assessed the compensation of Rs.16,77,247/- to be paid to the Appellant (Claimant), the same was received under protest. The Appellant (Claimant) claimed the enhancement of said compensation by saying that the same has not been properly assessed by the Land Acquisition Officer. So, a reference was made to the referral Court under Section 18 of the L.A. Act.
The referral Court, on going through the evidence both oral and documentary as placed by the parties, has enhanced the compensation by 20% more and directed the payment of enhanced compensation to the Appellant (Claimant) with all other available statutory benefits.
3. The Appellant (Claimant) submitted that the acquired land is fit for homestead purpose and it was having high potential value. It is further stated that the acquired land is situated within the Notified Area Council of Khariar and its market value ought to have been determined by taking it as fit for being used as homestead land and at the minimum, it ought to have been assessed at Rs.25,00,000/- (rupees twenty-five lakhs) per acre. The claim on this score has been modified before the referral Court by the Appellant (Claimant) in seeking enhancement of the market value of the land at Rs.60,000/- (rupees sixty thousand) per decimal. The above claim was resisted by the Respondent.
4. Learned counsel for the Appellant (Claimant) submits that the learned referral Court's judgment/award in ultimately entitling the Appellant (Claimant) claims to get 20% more of the Page 2 of 5 // 3 // compensation as has been awarded is against the weight of the evidence on record and without taking into consideration the surrounding circumstances and special features as to the advantages which were attached to the land as also its potentiality. He, therefore, urges for further enhancement of the compensation keeping in view the evidence in support of the same.
Learned Additional Standing Counsel submits all in favour of the judgment/award impugned in this Appeal. According to him, all those surrounding circumstances and features as to advantages attached to the land which had not been taken into consideration by the Land Acquisition Officer have been duly noted by the learned referral Court and upon detail evaluation of the evidence on record, the conclusion arrived at, is well in order.
5. Keeping in view the submission made, I have carefully gone the judgment/award in question.
6. In the given case, the extent of the acquired land is Ac.1.18 decimals and its kisam, as per the record of right, is 'Mala Mamuli'. From the side of the Appellant (Claimant), two sale deeds of the said area (Ext.1 and 2) have been admitted. Those, however, are concerned with much lesser extent of land of 6 decimals and 10 decimals respectively and in first case of the year 2005, the consideration paid when was comes to Rs.3,00,000/- (rupees three lakhs); in the second case, it was Rs.40,000/- (rupees forty thousand) in the year 2004. It is the evidence of P.W.1 that the acquired land is within the township of Khariar NAC and the National Highway (Nuapada to Bhawanipatna) is at a distance of around 490 meters from the acquired land. It has also been stated that one Mission Hospital Campus is there at a distance of 540 meters and 200 meters apart, the Autonomous College is running Page 3 of 5 // 4 // being intervened by a public road. The evidence is also there to show that other houses are situated nearby. The witnesses of the Respondent examined as O.P.W.1 has also stated almost the same as to the situation/location of the acquired land. Though the transactions shown from the side of the Appellant (Claimant) are in relation to the homestead land, the evidence on record provides definite impression that the land in question is fit for being used for the same purpose despite it being recorded some other kisam. It has been noted by the learned referral Court and has also been admitted by the witnesses examined from the side of the Respondent that the acquired land was situated near human dwellings, road, public and educational institutions. Thus, it can well be said that the acquired land for being used or legally sold as homestead land as per law only required to receive the approval of the Authority, conversion of kisam.
It is settled position of law that the market value of the land is required to be determined giving due regard to the existing advantages and potential possibilities by suitably adjusting various positive and negative factors vis-à-vis under acquisition by placing the two in juxtaposition.
The referral Court having stated in the above light when has rightly ignored the kisam of the acquired land as noted in the record and said that the acquired land had the potentiality to be used as Gharabari is, however, not correct in saying that enhancement of compensation by 20% of what has been assessed by the Land Acquisition Officer would be just and proper. In that exercise, the referral Court appears to have not taken into Page 4 of 5 // 5 // consideration an important factor that when the said land of Ac.1.18 decimals had the potentiality of being used as homestead land so as to obtain the maximum price, the owner, i.e, the Appellant (Claimant) had the best available option to go for a plotted scheme in dividing the land into small parts providing road and other facilities and sale those to several intending purchasers selecting from the most disadvantageous plot and gradually going ahead in order to get higher consideration in proceeding to sale one after another.
Cumulatively viewing all these factors on the obtained evidence, in my considered view, it would be just and proper to enhance the market value of the acquired land by 30% more, as has been so assessed by the Land Acquisition Officer.
7. The Respondent is hereby directed to accordingly compute and pay the compensation to the Appellant (Claimant) with all other statutory benefits.
Keeping in view the facts and circumstances, it is felt necessary in the interest of justice to direct the Referral Court that upon deposit of the amount as aforesaid by the Respondent; 80% of the same would be kept in unecumberable and non-pledgeable long term Fixed Deposit of ten years at the minimum in the name of the Appellant (Claimant) in any Nationalized Bank with monthly interest payable to him through his Savings Bank Account and the rest 20% shall be paid to the Appellant (Claimant) by keeping the same in deposit in his Savings Bank Account in the said Bank where the Fixed deposit would be kept.
8. The LAA is accordingly disposed of.
Issue urgent certified copy of this order as per rules.
(D. Dash), Judge.
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