Orissa High Court
Sri Nabakishore Rajguru Mohapatra vs State Of Orissa & Another on 6 February, 2015
Author: B.K.Nayak
Bench: B.K.Nayak
HIGH COURT OF ORISSA : CUTTACK
LAA NO.48 OF 2005
&
LAA NO.49 OF 2005
An application under Section 54 of the Land Acquisition Act,1894.
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L.A.A. No.48 of 2005
Sri Nabakishore Rajguru Mohapatra ... ... Appellant.
Versus.
State of Orissa & another ... ... Respondents.
For Appellant : M/s. S. Mishra, S. Dash, S. Nanda,
B. Mohanty, B.S.Panigrahi &
A.K. Dash.
For Respondents : Additional Government Advocate.
(for respondent no.1)
: M/s. Jaganath Patnaik, B. Mohanty,
A. Pattanaik & P.K. Nayak.
(for respondent no.2).
L.A.A. No.49 of 2005
Sri Satyanarayan Rajguru Mohapatra ... ... Appellant.
Versus.
State of Orissa & another ... ... Respondents.
For Appellant : M/s. S. Mishra, S. Dash, S. Nanda,
B. Mohanty, B.S.Panigrahi &
A.K. Dash.
For Respondents : Additional Government Advocate.
(for respondent no.1)
: M/s. Jaganath Patnaik, B. Mohanty,
A. Pattanaik & P.K. Nayak.
(for respondent no.2)
PRESENT
THE HON'BLE SHRI JUSTICE B.K.NAYAK
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Date of hearing : 05.12.2014 : Date of judgment: 06.02.2015
B.K.NAYAK, J.These two appeals have been filed under Section 54 of the Land Acquisition Act,1894 challenging the common order dated 2 13.05.2005 passed by the learned Civil Judge (Senior Division), Rayagada in M.J.C. No.5 of 2002 & M.J.C. No.4 of 2002 respectively.
Since both the appeals arise out of the same acquisition notification and involve common questions of fact and law, they were heard analogously and are being disposed of by this common judgment.
2. Land Acquisition Case was initiated by respondent no.2 in 1997 for acquisition of land belonging to the appellants along with other lands in village-Paikasunkarmetu in the district of Rayagada for extension of respondent no.2-Corporation for industrial purpose by applying the emergency procedure under Section 17(4) of the Land Acquisition Act (in short 'the Act'). Notification under Section 4(1) read with Section 17(4) of the Act was issued on 18.06.1998 and subsequently declaration under Section 6(1) of the Act was issued. Award was finally passed by the Land Acquisition Officer on 18.03.2000 fixing compensation amount at the rate of Rs.14,360/- for Dry-I land and Rs.9,740/- for Dry-III land per acre including 30% solatium and additional compensation of 12%. The appellants received the compensation on protest and filed application under Section 18 of the Act, on the basis of which, M.J.C. Nos.5 and 4 of 2002 were registered by the learned Civil Judge (Senior Division), Rayagada.
3. The claim of the appellants was that the acquired land was part of proposed MMG township project at the time of its acquisition and was possessed of all advantages and facilities for urbanization, being situated adjacent to the river near Rayagada Municipality. The land was proximate to state highway, railway stations and residential houses, 3 technological school, industries and other commercial establishments and had high potential value. It was also contended that the appellants entered into agreement with a builder for joint real estate business with the acquired lands, which was developed for a township project with price fixed at Rs.2.00 lakhs per acre.
4. The case of the respondents was that all relevant provisions and norms as per the Government circulars were followed for assessing the market value of the land and accordingly compensation was fixed.
5. In the proceeding, the appellants examined four witnesses and the respondents examined two witnesses, namely, the Amin and Senior Clerk of the Land Acquisition Office, Rayagada. Besides, the parties also relied upon certain documents.
On consideration of the evidence on record, the court below fixed the valuation of Dry-I land at Rs.25,640/- and Dry-III land at Rs.22,560/-, after deducting 1/3rd of basic value towards development cost.
6. Learned counsel for the appellants submits that the court below has not taken into consideration the advantages of the land which had all potentional for urban development and that it was part of a real estate project since the appellants entered into agreement with a real estate developer and that the court below has not taken into consideration this aspect in its proper perspective. It is also contended that the determination of the market value of the acquired land by the court below is based on conjectures and surmises. It is stated that the 4 value of the acquired lands could not have been less than Rs.2.00 lakh per acre.
Learned Additional Government Advocate, on the other hand, submits that the trial court has determined the valuation of the land after taking into consideration all necessary factors, in the absence of any contemporaneous sale deed of the village in question and, therefore, there is no infirmity in the impugned order.
7. Admittedly, the acquired lands are dry lands. Evidence of the witnesses of the appellants with regard to the appellants' claim that the land was cultivable land and that the appellants had constructed farm house and developed orchards on the part of the acquired land has been disbelieved by the trial court on proper assessment of evidence. In absence of any documentary evidence with regard to such claim, oral evidence with regard to cultivation and deriving agricultural income, which is inconsistent and contradictory, cannot be believed.
Learned counsel for the appellants has emphasized more on the advantages of the acquired land and its future potentiality stating that the land in question was being developed as a township and appellant no.1 has already entered into an agreement (Ext.8) with a real estate developer for the said purpose. Ext.8 was executed on 02.11.1997 authorizing the developer to develop the lands. On the same day, another agreement (Ext.9) was executed between appellant no.1 and the said real estate developer fixing the valuation of the land under acquisition at Rs.2.00 lakh per acre. However, it is evident that in the year 1997, when the land was proposed to be acquired, appellant no.1 was working as 5 Additional L.R.-cum-Joint Secretary in the Law Department, Government of Orissa. He has however, denied the suggestion that having come to know that the land was proposed to be acquired he created documents under Annexures-8 and 9 for the purpose of getting higher compensation.
Exts.8 and 9 are however mere agreements and admittedly no developmental work for the purpose of a real estate business was initiated and not a single plot out of the proposed development area was sold. Since, there is no contemporaneous sale deed in respect of any land in the village in question, far less any land adjacent to the acquired land, the mere stipulation in Ext.9 that the valuation of the acquired land would be Rs.2.00 lakh per acre cannot be taken into consideration for determining the market value of the land on the date of acquisition notification.
8. Reliance has also been placed by the appellants on Exts.14 to 16, 19 and 20. Ext.14 is a sale deed dated 20.10.2000 in respect of the sale of Ac.0.055 of land by the real estate developer in village- Sunkarimantu, which is said to be adjoining the acquired village. In village Sunkarimantu, the real estate developer, M/s. Gajapati Estate Private Limited was selling lands by developing the same. Exts.15 and 16 are also sale deeds of October,2000 in respect of sale of Ac.0.055 for Rs.5,000/- and Ac.0.110 for Rs.10,000/-, out of the project area in village-Sunkarimantu. As per these three sale deeds, in the year 2000 small patches of lands were sold at valuation of little less than Rs.1.00 lakh per acre. In case a developed area is sold in the year 2000 for such value, lands in larger patches having similar advantages, but not developed would have been valued much less in the year 1997-98. 6 Similarly, Ext.19 sale deed is of the year 1998 in respect of the sale of Ac.0.040 of land in mouza-Rayagada which is in Rayagada Municipal area. Therefore, the said sale deed cannot be taken into consideration for determining the market value of the acquired land. In absence of any document, the learned trial court being conscious of the position of law has taken into consideration the potential value of the acquired land, which is situated on the other side of Rayagada Municipality intervened by a river, in determining the market value for Dry-I and Dry-III lands respectively at Rs.38,460/- and Rs.33,840/- and after deducting 1/3rd towards development cost determined the net value, which cannot be said to be unreasonable or arbitrary.
It is not a case where the trial court has ignored any material for consideration and, therefore, I find no infirmity in the impugned order. The appeals are accordingly dismissed.
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B.K.Nayak,J.
Orissa High Court, Cuttack The 6th. February, 2015/Gs.