Orissa High Court
Bholanath Sahay & vs State Of Orissa on 28 August, 2024
IN THE HIGH COURT OF ORISSA, CUTTACK
LAA No.5 of 2011
Bholanath Sahay &
others ....... Appellants
-Versus-
State of Orissa ........ Respondent
For Appellants : Mr. S. Panigrahi,
Advocate
For Respondent : Mr. B. Panigrahi,
ASC
...................
CORAM: JUSTICE SANJAY KUMAR MISHRA
Date of Hearing: 16.07.2024 Date of Judgment: 28.08.2024
_____________________________________________________________
S.K. MISHRA, J.
1. This Appeal has been preferred against the judgment and order dated 27.11.2010 passed by the Civil Judge (Senior Division), Champua, in L.A. Reference No.01 of 2010 for further enhancement of compensation.
2. The brief facts, which led to the filing of this Appeal, are that land belonging to the Appellants measuring AO.880 dec., appertaining to Plot no. 693, Ac.6.000 dec., appertaining to Plot no.694 of Sarad-II Kisam, AO.240 dec. appertaining to Plot no. 699 of Bagayat-I Kisam and an area of AO.880 dec. appertaining to plot no. 700 of Bagayat-II Kisam (in total Ac.8.000 dec.) under Khata No. 43 of Mouza- Nalda were acquired by the Land Acquisition Officer, shortly, LAO, for establishment of Industry by IDCO vide Notification No.42597 dated 29.10.2007 in terms of Section 4(1) of the Land Acquisition Act, 1894, shortly, "L.A. Act". The LAO arbitrarily assessed the compensation in total at Rs.1,62,67,927, including 30% solatium and 12% interest, without considering the prevailing market price of the acquired land, which the Appellants received under protest. Thereafter, in a reference made under Section 18 of L.A. Act,1894, which was registered as L.A. Reference No. 01 of 2010, the referral Court, vide order dated 27.11.2010, without appreciating the materials on record and the evidence in its proper perspective, awarded compensation of Rs. 12,50,000/- per acre. Hence, this Appeal.
3. This Appeal has been preferred on the grounds that, the impugned judgment is an outcome of non- application of mind by the Court below as it committed Page 2 of 15 illegality in coming to a conclusion that the correct valuation of the land is Rs.12,50,000/- per acre without being supported by any evidence available on record.
Further, the Court below failed to take into consideration the statement of P.W.1 about the existence of a Pump House and a Guard Room on the acquired land showing potential value of the acquired land as a building site, which has also been corroborated by P.W.2. Similarly, Ext.2 i.e. certified copy of RSD No.156 dated 09.04.2007, coupled with evidence of P.W. Nos.1 & 2 shows that the value of the land was Rs.16,00,000/- per acre in the year 2007, while assessing the compensation amount, the Court below assessed the value of the land at Rs.12,50,000/- per acre. Similarly, though there were 540 nos. of trees, including teak, neem and also other fruit bearing trees, the values of the trees, as assessed by the LAO to be Rs.8,61,689/-, is grossly inadequate and liable to be enhanced.
4. Learned Counsel for the Appellants submitted that, since the sale deeds relied upon by the LAO were of the year 2006 and notification under section 4 of the L.A. Act was Page 3 of 15 issued on 29.10.2007, the Appellants are entitled to compensation at an enhanced rate, which should be at least 10 to 15% more for the said interregnum period, in terms of the decision of the Supreme Court in Radha Mudaliyar Vs. Special Tahsildar, reported in AIR 2011 SC 54.
5. Reiterating the grounds agitated in the Memorandum of Appeal, learned Counsel for the Appellant further submitted that P.W.1, who is the Appellant No.1, in para-5 of his Affidavit Evidence categorically stated that, there was a tank, pump house and guard room on the acquired land and the evidence of P.W.1 has also been corroborated by P.W.2, who is a resident of village Nalda. However, the Referral Court, in absence of any evidence to the contrary, committed illegality in coming to a conclusion that no documents were filed by the Appellants to substantiate such claim.
6. It was further submitted by the learned Counsel for the Appellant that, the Appellants were awarded compensation for 112.12 trees out of 121 in plot no. 693, in plot no. 694 compensation was awarded for 233.94 trees out of 341, in plot no.699 compensation was awarded for 18.16 Page 4 of 15 trees out of 23 trees and in plot no.700 compensation was awarded for 38.25 trees out of 55 trees. Thus, compensation for remaining 137 nos. of trees should have been awarded by the LAO, which the Court below failed to appreciate.
7. To substantiate his submissions, learned Counsel for the Appellant also relied on the Judgments of the Supreme Court in Ambya Kalya Mhatre (dead) through LRs. and Others Vs. State of Maharashtra reported in (2011) 9 SCC 325 and Administrator Genl. Of west Bengal Vs. Collector, Varanasi reported in AIR 1988 SC 943.
In Ambya Kalya Mhatre (dead) through LRs. (Supra) it was held that Land Acquisition Officer is not a Court and when he determines compensation, he does not adjudicate, but merely makes an offer for acquired land on behalf of Govt. If landowner considers amount offered by LAO to be inadequate and makes a request within the prescribed period for reference to civil Court under section 18, the LAO is bound to refer matter to civil Court for determination of compensation.
(Para-17,18)
Page 5 of 15
In Administrator Genl. Of west Bengal
(Supra) it was held that,
8. The determination of market value of a piece of land with potentialities for urban use is an intricate exercise which calls for collection and collation of diverse economic criteria. The market value of a piece of property, for purposes of Section 23 of the Act, is stated to be the price at which the property changes hands from a willing seller to a willing, but not too anxious a buyer, dealing at arms length. The determination of market value, as one author put it, is the prediction of an economic event viz. the price outcome of a hypothetical sale, expressed in terms of probabilities. Prices fetched for similar lands with similar advantages and potentialities under bonafide transactions of sale at or about the time of the preliminary notification are the usual, and indeed the best, evidences of market value. Other methods of valuation are resorted to if the evidence of sale of similar lands is not available. Page 6 of 15
8. In response to the said submission made by the learned Counsel for the Appellant, learned Counsel for the State-Respondent submitted that while assessing the land value of different kisams of land of Mouza-Nalda, the LAO has taken into consideration the registered sale deeds in respect of different kisams of land of village- Nalda and the nearby village for the period from 2005 to 2007. As, on field enquiry, it was ascertained that there was no sale transaction pertaining to Village-Nalda in respect of Sarad-II, Bagayat-I and Bagayat-II Kisam of lands, the LAO took into consideration two registered sale deeds in respect of Sarad-II kisam of land of the year 2006 of the nearby village and after field visit, it was found that the quality and fertility of Sarad-II, Sarad-I and Sarad-III as well as Taila-I, Taila-II and Taila-III kisam of land of that area are equal. Thus, the RSDs of Taila-I and Taila-II kisam of land were taken into consideration by the LAO while assessing the rate showing the sale price of the said kisam of land to be ranging from Rs.12,00,000/- to Rs.16,00,000/-.
Learned State Counsel further submitted that the LAO has valued the trees at Rs.8,61,689/- based on Ext. 5 i.e. Page 7 of 15 copy of the Valuation Sheet as well as Ext. 5/a i.e. Copy of Form-9 (A), which indicates the schedule of trees and that the D.F.O, Keonjhar has rightly assessed the total value of the trees standing on the acquired land.
9. In view of the submissions made by the learned Counsel for the parties, before dealing with the point as to whether the Appellants were justified to prefer this Appeal seeking for further enhancement of the compensation awarded in their favour, it would be apt to reproduce below the relevant portion from para-7 of the impugned judgment:-
"7. "xxxx While assessing the land value of different kisams of land of mauza- Nalda, the Land Acquisition Officer has taken into consideration of the registered sale deeds in respect of different Kisam of land of the village Nalda and the nearby villages during the period from 2005 to 2007 so also on field enquiry. It appears that during the period from 2005 to 2007, there was no sale transaction at village Nalda in respect of Sarad-II and Bagayat-I and Bagayat-II kisam of land. The Land Acquisition Officer has taken two registered sale deeds in respect of Sarad II kisam land of the year 2006 of the nearby village and after field visit, he was found that the quality and fertility of Sarad-II, Sarad-Ⅰ, Sarad-III and Taila-I, Taila-II and Taila-III are equal of that area. So the Registered Sale Deeds which were taken into consideration by the Land Acquisition Officer while assessing the rate of Taila-I and Taila-II kisam of land are also seen which shows the sale price Page 8 of 15 ranging from Rs.12,00,000/- to Rs.16,00,000/-. This shows the ascending value of the landed properties in that village. So, it can be inferred that the cost of the landed property in the locality is of the ascending value. xxxx"
(Emphasis Supplied)
10. In addition to the above, the referral Court also came to a finding that although it is claimed by the Appellants/Petitioners that during assessment, the LAO has taken into consideration the fact regarding existence of guard room, pump house and tank over the acquired land, but no document regarding the construction of pump house, guard room, excavation of tank, electrification or regarding purchase of pump set has been filed by the Appellants (Petitioners before the Court below). The Court below further held that the case record shows that no Jalasaya kisam of land of the Petitioners has been acquired and no R.O.R. to the said effect has been filed by the Appellants/Petitioners.
11. Accordingly, the Court below, accepting the price of the landed properties of the locality i.e. at Nalda, to be marginally higher, as assessed by the LAO, came to a conclusion that the Appellants/ Petitioners will be entitled to Page 9 of 15 compensation at Rs.12,50,000/- per acre for Sarada-II, Bagayat-I & II kisam of land.
12. Admittedly, Ext.2 goes to show that in the year of 2007, the value of the land was Rs.16,00,000/- per acre. As is revealed from the L.C.R, though P.W.1, in para 5 of his evidence, has categorically stated that there was a tank, pump house and guard room on the acquired land and the evidence of P.W.1 was corroborated by P.W.2, in absence of any evidence to the contrary, the referral Court came to a conclusion that no documents were filed by the Appellants in proof of such construction and thereby disbelieved the evidence of P.W.1 & 2 without any contrary evidence laid by the State-Opposite Party so also the admitted evidence of P.W.2, particularly when the State Respondent/Opposite Party before the Court below, declined to cross-examine P.W.2.
13. As is further revealed from the L.C.R, though compensation was awarded for standing trees on various plots, but no compensation was awarded for 137 nos. of trees on the ground that they were small trees. Though the Appellants, who lost their land, ought to have been Page 10 of 15 compensated by giving them the real market value of the land so also should have been awarded compensation for the remaining 137 nos. of trees, the Court below failed to appreciate the said claim.
14. On perusal of the impugned judgment and LCR, it is ascertained that the LAO held that the quality and fertility of Sarada-I, II & III so also Taila-I, II & III kisam of land of the said area to be equal. The RSDs, which were taken into consideration by the LAO while assessing the rate of Taila I & II kisam of land, shows the sale price of the said kisam of land is ranging from Rs.12,00,000/- to Rs.16,00,000/- per acre. However, the kisam of some of the lands of the Appellants/Petitioners being Bagayat-I & II, the Court below, based on the said report of LAO , held that the correct valuation of the suit land would be Rs.12,50,000/- per acre for all the kisam of lands i.e. Sarada-II, Bagayat-I & II.
15. In view of the above, as Sarada-II kisam of land is better than Bagayat-I & II kisam of land , this Court is of the view that the referral Court ought to have enhanced the compensation for Sarada-II kisam of land @ Rs.16,00,000/- per acre instead of Rs.12,50,000/-, in view of its own Page 11 of 15 observation made in para 7 of the impugned judgment. That apart, this Court is also of the view that as per the settled position of law, the Court below failed to consider further enhancement of compensation for the interregnum period.
16. So far as finding of the Court below that the case record shows that no jalasaya kisam of land of the Appellants/Petitioners has been acquired and the Petitioners have also not filed any R.O.R. to the said effect, to deny the compensation for construction of guard room, pump house and tank on the acquired land, this Court is of the view that such an observation is perverse. The reason to observe so is that P.W.1 specifically deposed in para-8 of his examination- in-chief regarding existence of guard room, pump house and tank on the suit land, during his cross examination, it was only suggested to the P.W.1 that he has not filed any document/certificate regarding valuation of guard room, pump house and the tank from the P.W. Department, which the P.W.1 admitted. However, no suggestion was given to the P.W.1 during his cross examination that he is stating falsehood regarding existence of guard room, pump house and tank on the acquired land.
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17. Similarly, as is reveals from the Affidavit Evidence of P.W.2, who claimed himself to be the adjacent tenant of the P.W.1, though in para 3 of his affidavit evidence, deposed about the existence of guard room, tank and pump house by the side of the river within the acquired land so also their respective sizes, but the State-Respondent (Opposite Party before the Court below) declined to cross examine the P.W.2.
18. Hence, this Court is also of the view that the Court below was not justified to refuse the prayer of the present Appellants (Petitioners before the Court below) for compensation towards cost of the guard room, pump house and tank over the suit land on the ground that the case record shows that no jalasaya kisam of land of the Petitioners has been acquired and the Petitioners have failed to file any R.O.R. to the said effect. Such an observation of the referral Court, to deny the compensation towards such claim of the Appellants, seems to be misconceived and deserves interference.
19. Similarly, so far as the claim for compensation towards remaining 137 nos. of trees of various species, this Court is of the view that some compensation ought to have Page 13 of 15 been awarded in favour of the present Appellants/Petitioners and the Court below was not justified to deny such a prayer on the ground that the LAO has already valued the trees at Rs.8,61,689/- and the copies of the valuation sheet vide Ext. 5 and Form No.9 (A) vide Ext. 5/a indicate that the DFO, Keonjhar has rightly assessed the total value of the trees, when neither any oral nor any documentary evidence was laid by the State-Respondent (Opposite Party before the Court below). Rather, Ext. 5 and 5/a were produced and exhibited from the side of present Appellants through P.W.1 to substantiate their claim that no compensation was awarded by the LAO, so far as the remaining 137 nos. of trees of various species are concerned.
20. In view of the aforesaid observation made by this Court, the impugned order dated 27.11.2010 passed in L.A. Reference Case No.01 of 2010 is hereby set aside and quashed. The matter is remitted back to the referral Court for re-determination of the compensation towards Sarada-II kisam of land at the rate of Rs.16,00,000/- per acre with benefit of increase of compensation @ 10% per annum for the interregnum period for all the kisam of land in terms of the Page 14 of 15 settled position of law as discussed above. It is also directed to assess and pay the compensation towards guard room, tank and pump house standing on the suit land and compensation for the remaining 137 nos. of trees, as detailed above.
21. It is made clear that the Court below shall give opportunity to the Appellants/Petitioners to adduce further evidence, if so required, with regard to valuation of the guard room, tank, pump house and remaining number of trees so also the State-Respondent/Opposite Parties to cross examine the witness(s) and lead rebuttal evidence, if so required, and conclude the said proceeding at the earliest, preferably within a period of six months from the date of production of the certified copy of this judgment.
22. Accordingly, the Appeal stands allowed and disposed of.
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S.K. MISHRA, J.
Orissa High Court, Cuttack.
Dated, 28th day of August, 2024 / Banita Signature Not Verified Digitally Signed Signed by: BANITA PRIYADARSHINI PALEI Designation: SR. STENOGRAPHER Page 15 of 15 Reason: AUTHENTICATION Location: HIGH COURT OF ORISSA, CUTTACK Date: 29-Aug-2024 16:10:51