Thakur Kuldeep Singh (D) through LR and others v. Union of India and others) and in AIR
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK L.A.A. No.7 of 2020 Union of India ....... Appellant -Versus- Sudhansu Sekhar Pattanaik and another ....... Respondents For Appellant : Mr. P.S. Nayak, Senior Panel Counsel For Respondent No.1 : Mr. M.K. Dash, Advocate For Respondent No.2 : Mr. T.K. Biswal, AGA ---------------------------- CORAM: JUSTICE SANJAY KUMAR MISHRA --------------------------------------------------------------------------------- Date of Hearing: 03.09.2024 Date of Judgment:19.09.2024 --------------------------------------------------------------------------------- S.K. Mishra, J. This Appeal has been preferred against the Judgment dated 19.09.2019 passed by the Senior Civil Judge, Khordha in L.A. Reference Case No.50 of 2015, vide which the L.A.A. No.7 of 2020 Page 1 of 13 Court below allowed the claim of the Claimant (Respondent No.1 in the present Appeal) and ordered for higher compensation. 2.
Facts
The brief background facts, which lead to filing of this Appeal, are that in pursuance of notification under Section-4(1), an area of Ac.0.125 decimals bearing Plot No.1208, under Khata No.530/05 of Kisam Sarad- Anajalasechita-1 of Mouza- Dabardhua in the district of Khordha having fruit bearing trees over the said land, belonging to the Claimant was acquired for the purpose of Khordha Road-Bolangir New Broad Gauge Rail Link Project, Khordha. The Land Acquisition Officer, shortly, ‘LAO’, assessed the compensation of Rs.11,000/- in total @ Rs.88,000/- per acre towards the land cost and Rs.30,392/- towards the cost of trees. It was also held that the Claimant/Respondent No.1 is also entitled for 30% solatium and 12% towards additional market value, which the Claimant/Respondent No.1 received under protest. Thereafter, in a reference under Section 18 of the Act, 1894, which was registered as L.A. Reference Case No.50 of 2015, the referral Court, relying on the exhibited documents and judgements of the Supreme Court in AIR 2010 SC 1272 L.A.A. No.7 of 2020 Page 2 of 13 (Thakur Kuldeep Singh (D) through LR and others Vs. Union of India and others) and in AIR 2013 SC 3654 (Ashrafi and others Vs. State of Haryana and others) vide order dated 19.09.2019, allowed the claim of the Claimant so also ordered for enhanced compensation to Rs.18,750/- @ Rs.1,50,000/- per acre for acquisition of the land of the Respondent No.1, Rs.65,000/- for loss of trees and ordered for payment of interest, solatium and other benefits on the enhanced amount as per the statute. Hence, this Appeal. 3. The Appeal has been preferred basically on the grounds that the Sub-Registrar, Bolagarh, issued Bench Mark Valuation for Anajalasechita-1 kisam of land to be Rs.88,000/- per acre. The Respondent No.1 relied upon the Bench Mark Valuation Report of the Sub-Registrar, Bolagarh supplied to the private Respondent in the year 2017, where the price of Anajalasechita-1 land was Rs.1,50,000/-. The land was taken into possession on 24.03.2012 and awarded amount was paid to Respondent No.1 on 27.11.2013. The Respondent No.1 appealed on 07.05.2014, relying on the Bench Mark Valuation supplied to him in year 2017 and the referral Court increased the land cost by Rs.1,50,000/- per acre. L.A.A. No.7 of 2020 Page 3 of 13 Further, the Horticulture Department and Forest Department submitted a valuation report for trees, which was approved and Rs.30,392/-was paid to Respondent No.1. However, the Court below increased the price of trees from Rs.30,392/- to Rs.65,000/-. Moreover, Respondent No.1, during his cross examination, admitted that he had purchased the property in the year 2005 from Dasarathi Pattanaik for Rs.5,500/- and the said land was acquired by the Special LAO and Rs.11,000/- was awarded. Though the land cost awarded to Respondent is appropriate and based on market price, but the Court below increased the land cost from Rs.88,000/- to Rs.1,50,000/- per acre. 4.
Legal Reasoning
“12. Now, let us examine whether Exhibits A1, A4 and A5 satisfy the above-stated tests. They were admitted in evidence in accordance with law as they are genuine transactions and are the closest sale instances to the date of the notification as available on record land, subject-matter of the and the transaction, the acquired land and, in fact, it is from the same village. Of course, the area, stated in these sale instances, is comparatively much smaller in size than the acquired land. The sale deed is dated 12.03.1984 while the notification under Section 4 was issued on 23.01.1985. Thus, is a difference of nearly ten months between two dates. The claimants would be entitled to the benefit this intervening period. Annual increase of 10% to 15% is normally allowed by the court where the record reflects increasing trend in the sale price of the land. This principle is often applied by this Court while determining compensation. Reference can be made to the judgments of this Court in ONGC Ltd. v. Rameshbhai Jivanbhai Patel [(2008) 14 SCC 745] : (AIR 2008 SC (Supp) 465) and Sardar Jogendra Singh (dead) by L.Rs. v. State of Uttar Pradesh [(2008) 17 SCC 133]. We have opted to apply the minimum increase possible because of the short intervening period between the increase these for of L.A.A. No.7 of 2020 Page 10 of 13 execution of the sale deed and issuance of notification under Section 4. Consequence of the above addition would be that the value of the land in terms of Exhibit A4 as on the date of the notification under Section 4 would be Rs. 3,699/- per cent rounded off to Rs. 3,700/- per cent which, when reasonable deduction is applied, would give more or less the same rate of compensation as computed by us on the basis of Exhibit A1.” (Emphasis Supplied) 13. On perusal of L.C.R, it is ascertained that vide Ext.4, which is the original RSD dated 15.01.2005, the present Respondent No.1 purchased the land measuring Ac.0.055 decimal of land for a consideration amount of Rs.5,500/- @ Rs.100/- per decimal (Rs.1,00,000/- per acre) on 15.01.2005. Admittedly, the notification under section 4(1) of the L.A. Act, 1894 for acquisition of land of the Respondent No.1 was made on 22.01.2013, which was notified in the Gazette on 06.02.2013, i.e. almost about eight years after such sale transaction. Had the rule of enhanced compensation for the interregnum period i.e. from the date of notification till 15.01.2005, been applied, the compensation would have been Rs.1,80,000/- per acre, as against Rs.1,50,000/- per acre, as has been held by the referral Court vide the impugned judgment. L.A.A. No.7 of 2020 Page 11 of 13 14. That apart, so far as evidence with regard to number of fruit bearing trees, their species and age, which was specifically stated by P.W.1 in his affidavit evidence, remained untouched during his cross-examination. Still the referral Court, instead of relying on the said admitted evidence on record with regard to valuation of the trees, applying the rule of guess estimate, enhanced the compensation from Rs.30,392/- to Rs.65,000/- for loss of 24 numbers of coconut trees and three numbers of teak trees. 15. On perusal of the judgment cited by the learned Counsel for the Appellant-Union of India, it is ascertained that the facts and circumstances of those cases are different from the present case and the principles decided vide the said judgments are not applicable to the facts and circumstances of the present case. Rather in Karigowda (supra) the Supreme Court held that the Court is entitled to apply some kind of reasonable guess work to balance the equities and fix just and fair market value in terms of the parameters specified under Section 23 of the Act, 1894. 16. It is found from the impugned judgment passed by the referral Court that while applying the principles of guess L.A.A. No.7 of 2020 Page 12 of 13 estimate, the Court below acted reasonably to enhance the compensation, as has been detailed above. 17. In view of the discussions detailed above, this Court is of the view that there is no infirmity or perversity in the impugned judgment dated 19.09.2019 passed in L.A. Reference Case No.50 of 2015 and the present Appeal preferred by the Union of India deserves to be dismissed. 18. Accordingly, the Appeal stands dismissed, thereby confirming the judgment passed in L.A. Reference Case No.50 of 2015. 19. In view of the dismissal of the Appeal, the Appellant-Union of India is directed to implement the said judgment dated 19.09.2019 passed in L.A. Reference Case No.50 of 2015 at the earliest, preferably with a period of four months from the date of production of the certified copy of this judgment. …….….…………………… S.K. MISHRA, J. High Court of Orissa, Cuttack The 19th September, 2024 /Kanhu L.A.A. No.7 of 2020 Signature Not Verified Digitally Signed Signed by: KANHU BEHERA Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 23-Sep-2024 11:27:55 Page 13 of 13
Arguments
Mr. Nayak, learned Senior Panel Counsel for the Appellant-Union of India, reiterating the grounds agitated in the Appeal, submitted that the notification under section 4(1) of the L.A. Act, 1894 was issued on 22.01.2013 and the bench mark valuation was obtained on 13.07.2013 and thereafter physical possession of the land of the Respondent No.1 was taken on 31.10.2013. However, the referral Court, while enhancing the compensation, took note of Bench Mark Valuation Report of Sub-Registrar, Bolagarh supplied to the L.A.A. No.7 of 2020 Page 4 of 13 Respondent No.1 in the year 2017 marked as Ext.3 so also sale deed of the year 2005 marked as Ext.4 and applying the guess estimate, not only the price of the land was enhanced to Rs.1,50,000/- per acre as against Rs.88,000/- per acre, as held by the Land Acquisition Officer, but also, the value of the trees were enhanced from Rs.30,392/- to Rs.65,000/- on guess work. Hence, the impugned award passed by the referral Court deserves interference, being so done solely because of guess estimate. 5. Though no such ground has been agitated in the memorandum of appeal, relying on the judgments of the Supreme Court reported in AIR 1984 SC 892 ( Kausalya Devi Bogra & others Vs. Land Acquisition Officer, Aurangabad and others) and reported in AIR 2010 SC 2322 (Special Land Acquisition Officer Vs. Karigowda and others), learned Counsel for the Appellant-Union of India further submitted that the sale transaction under Ext.4 is a small piece of land and should not have been taken into consideration by the referral Court to enhance the compensation to Rs.1,50,000/- per acre, instead of Rs.88,000/- per acre. L.A.A. No.7 of 2020 Page 5 of 13 6. Mr. Nayak further submitted that though the guess work is permissible, as per the judgment in Karigowda (supra), such guess work should be reasonable to balance the equities and fix just and fair market value in terms of the parameters specified under section 23 of the Act, 1894. But in the present case, the referral Court ignored the said aspect while enhancing the compensation for the land so also for the acquired trees. 7. Per contra, learned Counsel for the private Respondent, drawing attention of this Court to RSD of the year 2005, marked as Ext.4, submitted that the present Respondent No.1 purchased a part of the suit land i.e. Plot No.1208, khata No.165 of Mouza-Dabardhua @ Rs.100/- per decimal (Rs.1,00,000/- per acre) whereas, the LAO, relying on the alleged bench mark valuation, erroneously valued the said land @ Rs.97 per decimal. Hence, the referral Court, applying the guess estimate, so also relying on RSD of the year 2005, which was marked as Ext.4 on admission and the Bench Mark Valuation supplied to the Petitioner/private Respondent in the year 2017, which was marked as Ext.3, rightly enhanced the compensation to Rs.1,50,000/-, instead of Rs.88,000/- per acre, as was erroneously held by the LAO. L.A.A. No.7 of 2020 Page 6 of 13 8. That apart, the evidence led before the referral Court regarding the potentiality of the said land at the time of acquisition to be high valued land and was being used for gharabari purpose remained unchallenged. So far as fruit bearing trees standing over the said plot, regarding their species and actual number of fruit bearing trees, their ages etc. though the Respondent No.1, who deposed as P.W.1, specifically stated before the referral Court that in the report submitted by the Department Amin and Horticulture Department, the actual number of trees and their ages were suppressed. It was also deposed by him that the villagers of Belapadar and Rolasingh, whose lands are situated at a distance of about 100 meters from the land of the Respondent No.1, were awarded Rs.10,000/- per tree for the same type and same age of trees whereas, the Respondent No.1 was discriminated by paying only Rs.1200/- per tree for the same type and same age of coconut trees. Such reports were also exhibited through the P.W. No.1 as Exts.5 & 6. Accordingly, P.W. No.1 deposed that the Respondent No.1 is entitled to enhanced compensation of Rs.388/- per decimal for the acquired land and Rs.10,000/- per tree considering the actual number of coconut trees and other trees and the said L.A.A. No.7 of 2020 Page 7 of 13 evidence of the P.W. No.1 remained unchallenged during his cross-examination. The referral Court should have enhanced more than what has been enhanced vide the impugned judgment. However, applying the principle of guess estimate, the referral Court has enhanced the compensation for acquisition of land so also the fruit bearing trees, balancing the claim made by the Respondent No.1 for enhancement vis- (cid:224)-vis the objection raised by the Appellant-Union of India opposing to such prayer for enhancement of compensation. 9. Learned Counsel for the private Respondent, relying on a recent judgment of this Court dated 28.08.2024 passed in L.A.A No.5 of 2011 (Bholanath Sahay and others Vs. State of Orissa), which was passed relying on the judgment of the Supreme Court reported in AIR 2011 SC 54 {Radha Mudaliyar and others Vs. Special Tahsildar (Land Acq.), T.N.H Board and ors}, further submitted that the basis to enhance the compensation was both Exts.3 & 4 and not only the bench mark valuation marked as Ext.3, which was supplied to the Respondent on 19.09.2017 by the Sub- Registrar, Bolgarh. 10. Learned Counsel for the private Respondent further submitted that even if the RSD marked as Ext.4 is L.A.A. No.7 of 2020 Page 8 of 13 taken into consideration alone, applying the rule of enhancement of compensation for the interregnum period i.e. from 15.01.2005 till the date of notification dated 22.01.2013, if minimum 10% is enhanced for the said interregnum period of 8 years, it would have been around Rs.1,80,000/- per acre. However, the referral Court, instead of doing so, applying the rule of guess estimate, has reasonably enhanced the price of the acquired land from Rs.88,000/- to Rs.1,50,000/- per acre and the differential value of the land, by virtue of such enhancement of compensation would be only Rs.18,750/-, as detailed in the concluding para of the impugned judgment. Similarly, the compensation for fruit bearing trees on the suit land was also enhanced reasonably instead of what had been claimed by the Respondent No.1 (Claimant). Hence, there being no infirmity in the impugned judgment passed in L.A. Reference Case No.50 of 2015, the appeal be dismissed directing the Appellant/Union of India to implement the order passed by the referral Court within a stipulated period. 11. Learned Counsel for the private Respondent further submitted that no rebuttal evidence was led by the Appellant-Union of India before the referral Court (both oral L.A.A. No.7 of 2020 Page 9 of 13 as well as documentary) opposing to the prayer made for enhancement of compensation. 12. In Radha Mudaliyar (supra) the Supreme Court held as follows:- to there is quite similar