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IN THE HIGH COURT OF ORISSA, CUTTACK LAA No.11 of 2022 Special Land Acquisition Officer, Talcher-Bimalagarh New B.G. Rail Link, Talcher ....... Appellant -Versus- Murari Charan Mishra ....... Respondent Advocates appeared in the case For Appellant : Mr. Tarun Pattnaik, A.S.C. For Respondent : Mr.Sarthak Pradhan, Advocate ----- CORAM: JUSTICE SANJAY KUMAR MISHRA _____________________________________________________________ Date of Hearing and Judgment: 06.02.2024 _____________________________________________________________ S.K. MISHRA,J. 1. Though the Appeal has been listed under the heading “For Admission”, scanned copy of the lower Court record being available, on consent of the learned Counsel for the Parties, the Appeal is taken up for hearing and final disposal. L.A.A. No. 11 of 2022 Page 1 of 13 2. The brief background facts, which led to filing of the present Appeal, are that by virtue of Notification dated 13.03.2015 issued under Section 11(1) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, shortly “the Act, 2013”, the lands were acquired for construction of Talcher- Bimlagarh New BG Rail Link Project in village Sheepur. In the process, Ac.0.290 decimals of land was acquired from Plot Nos.2200/6064, 2199/6079, 2484/6061, 2535/5624 corresponding to Khata No.552/43 of Mouza-Sheepur belonging to the Respondent, which is coming under Tahasil- Kaniha of district Angul. The Special Land Acquisition Officer fixed the compensation of Rs.2,23,740/- per acre for Sarad-III and Gharabadi kisam of land and for entire land, a compensation of Rs.90,838.44/- was awarded. Besides the land, compensation for the structure and trees existing over the acquired plot was also fixed at Rs.5,26,930.14/- and Rs.1,05,772/- respectively. The total compensation of Rs.14,76,647/-, which includes solatium and additional market value, have been paid to the Respondent, which he L.A.A. No.11 of 2022 Page 2 of 13 received under protest. The compensation was computed after observing the provisions under Sections 26 and 29 of the Act, 2013 and guidelines framed by the Government in Revenue and Disaster Management Department vide letter dated 07.02.2014. It is further case of the Appellant that, prior to the disbursement of compensation, one Panchanan Debata filed an objection petition claiming 1/3rd compensation of acquired trees and structures by virtue of an agreement. Considering such fact, the matter was referred under Section 76 of the Act, 2013 to the Court of Civil Judge (Senior Division), Talcher, for settlement of the dispute relating apportionment of the compensation. The said Court remanded the matter on the point of jurisdiction. Accordingly, the Respondent submitted one indemnity bond along with an Affidavit on 31.03.2017 before the Appellant, with an undertaking that if any Court passes a decree in favour of the objector Panchanan Debata regarding portioned payment any compensation, he will comply it immediately. Accordingly, the payment was made to the Respondent and the matter was referred under Section 64 of the Act, 2013 to the Court below. L.A.A. No.11 of 2022 Page 3 of 13 The Court below, vide judgment dated 15.04.2021, allowed the reference in part on contest against the Appellant without cost. It was held that the present Respondent is entitled to get compensation of Rs.16,500/- for Ac.0.060 decimals of Sarad-III kisam of land @ Rs.2,75,000/- per acre and Rs.4,60,000/- for Ac.0.230 decimals of Gharabari kisam of land @ Rs.20,00,000/- per acre, Rs.5,26,930.14/- towards the compensation for his homestead structures and Rs.27,61,322/- towards the value of the 150 nos. of trees. Apart from the same, the Court below observed that the present Respondent is also entitled to get statutory solatium @ 100% on the market value, the additional market value on cost of land @ 12% per year for two years (cutoff date being the date of publication of preliminary notification under Sections 11 (1) to 19(1) of the Act, 2013 to award maximum one year). It was further observed that the compensation already received by the Respondent shall be deducted from the total amount payable to him and the present Appellant was directed to pay the differential amount within four months from the date of the said order with usual interest, as provided under Section 80 of the Act, 2013, till the payment is made. Being aggrieved L.A.A. No.11 of 2022 Page 4 of 13 by such order, the Appellant has preferred this Appeal under Section 74 of the Act, 2013. 3.
Legal Reasoning
Mr. Pattnaik, learned Counsel for the Appellant submits that the Court below misdirected himself in appreciating the evidence and arrived at a wrong conclusion instead of rejecting prayer of the Respondent for enhancement of compensation. He further submits that there is no infirmity in determination of the Special Land Acquisition Officer, which was determined following guidelines prescribed under Section 26 of the Act, 2013. Drawing attention to Ext. 9 i.e. the information supplied under the Right to Information Act with regard to the general selling rate of round timber (Rate per cum, excluding Taxes in Rs.), Mr. Pattnaik submits that the notification for acquiring land was on 19.03.2015 and the information with regard to price of general selling of timber provided under the Right to Information Act was of the year, 2020, based on which the Court below enhanced the compensation amount of the timber. Hence, the said judgment passed by the Court below deserves interference. 4. In response to the said submission of the learned Counsel for the Appellant, Mr. Pradhan, learned Counsel for L.A.A. No.11 of 2022 Page 5 of 13 the private Respondent submits that the Ext.9 was marked without any objection. Apart from the same, Mr. Pradhan, drawing attention of this Court to the relevant paragraphs of the findings given by the Court below, submits that the impugned award has been passed taking note of the evidence on record and there being no perversity in the impugned award, the present Appeal deserves to be dismissed in limine. 5. In view of such submissions made by the learned Counsel for the Parties, it would be apt to reproduce below the Paragraph Nos. 11 to 14 of the impugned award dated 15.04.2021 for proper adjudication of the present lis. “ 11. In the instant case, on perusal of the contents of Ext.D i.e. assessment report of market value for the acquired land in Village-Seepur, it is found that though the preliminary notification for acquisition of land for the project of construction of Talcher-Bimlagarh New BG Rail Link Project, Talcher was published in Village-Seepur on dtd 19.03.2015 but the Bench Mark Valuation Report of the land up to the said date was not taken into consideration to determine the market value of the land. Rather the Bench Mark Valuation Report (BMVR) for the year-2007 was taken into consideration. OPW-1 in his cross examination at Para-14 has also admitted the said fact. When the land has been acquired in the year-2015, the BMVR L.A.A. No.11 of 2022 Page 6 of 13 for the year-2007 taken into consideration by the Special LAO to fix the market price of different kisam of land in the present case is not only illegal but also contrary to the provisions envisaged U/s 26 of the Act. It has been mentioned in Ext.D that as there was no Sale Transaction for Sarad-III kisam of land three years prior to the publication of notification U/s 11(1) of the Act, the LAO considering the category of land as per BMVR, that too for the year-2007, has fixed the market price of Sarad-III kisam of land @ Rs.2,23,740/- per acre, even though the land of the Petitioner of that kisam has not find place in Bench Mark Valuation category. The LAO could have obtained the BMVR for the year-2015 from the Sub-Registrar, Talcher to determine the market price of Sarad-III kisam of land. If there was no sale transaction of Sarad-III kisam of land at Village-Seepur, then the LAO was duty bound to conduct inquiry as provided U/s 26 1(b) 1(c) of the Act for determination of market price. But nothing has been done according to the provisions of Section 26 of the Act. OPW-1 in his cross examination at Para-16 has stated that for the same project lands from Village- Keshabpur was also acquired and Ext.3 is the assessment report of market price of the land in Village- Keshabpur. It is seen from Ext.3 that as there was no sale transaction for Sarad-III and Gharabari kisam of land, its market value was worked out taking into consideration the annual rental value of the said kisam of land and the annual rental value L.A.A. No.11 of 2022 Page 7 of 13 was fixed @ Rs.5,50/- and Rs. 30/- per acre respectively. Accordingly the market price of the above kisam of land was fixed @ Rs.2,75,000/- and Rs.15,00,000/- per acre respectively. From Ext.5 it is found that the rental value of Sarad-III and Gharabari kisam of land as per settlement record in respect of Village-Seepur under Kaniha Tahasil has been fixed @ Rs.5.50/- and Rs.30/- respectively. It is needless to mention here that the rental value of different kisam of land fixed in Ext.5 is same with that of Ext. 3. 12. The Petitioner while being examined as PW-1 has stated that he is entitled to get compensation towards the land value @ Rs.7,00,000/- for an area Ac.0.29 decimals of land, that means Rs. 24,00,000/- per acre. At the same time in his objection petition he has claimed Rs.80,00,000/- per acre towards land value for compensation. However, to that effect no concrete evidence has been produced by him. Of course Ext. 1 is relates to the sale transaction of Sarad-III kisam of land @ Rs. 15,00,000/- per acre in Mouza- Nathuripasi but PW-1 nowhere in his evidence has stated if Mouza-Nathuripasi is the nearest/adjacent village of Mouza-Seepur or that land was acquired from the said village for the project of construction of Talcher-Bimlagarh New BG Rail Link Project, Talcher. PW-1 has also not examined the vendor/vendee of Ext.1. Therefore Ext.1 cannot be taken into consideration to determine the market price of Sarad- III kisam of land. However after thoroughful scrutiny of Ext.3 and 5 and keeping in view that the rental value of the Sarad-III kisam of land in L.A.A. No.11 of 2022 Page 8 of 13 Village-Keshabpur and Seepur from where lands have been acquired by the State for construction of Talcher-Bimlagarh New BG Rail Link Project, Talcher, it can be said that the Special LAO ought to have fixed the market price of Sarad-III kisam of land at Village-Seepur @ Rs.2,75,000/- per acre. 13. Similarly for Gharabari kisam of land the Special LAO has fixed the market price @ Rs.2,23,740/- per acre. What it revels from Ext.D that the LAO collected one sale statistics from SRO, Talcher vide RSD NO. 1946 dtd. 03.09.2014 for Gharabari kisam of land showing the sale transaction @ Rs.20,000/- for an area Ac.0.010 decimals of Khata No. 195, Plot No. 1030/5849 of Mouza-Seepur. But that has not been taken into consideration with the observation that it seems to be an intentional sale. It is apt to mention here that the Petitioner has also tendered the said RSD in shape of documentary evidence as Ext. 2 and strongly asserts that the State should have taken it into account in determining the quantum of compensation as the land in question (Gharabari land) is almost identical in nature to that mentioned therein (Ext.2). From the contents of Ext.2 and the evidence of PW-2 it is clear that PW- 2 is the vendor of Ext.2. Ext.2 is a sale deed dtd. 03.09.2014 in respect of an area measuring Ac.0.010 decimals sold for Rs. 20,000/-. The consideration amount was assessed in the document @ Rs.20,00,000/- per acre. Its perusal shows that the land covered there under was L.A.A. No.11 of 2022 Page 9 of 13 Gharabari. Nothing is available to discard this assertion. Law is well settled that genuine and bonafied sale transactions in respect of the land under acquisition or in its absence the bonafied sale transactions proximate to the point of acquisition of the lands situated in the neighborhood of the acquired lands possessing similar value or utility taken place between a willing vendee and the willing vendor which could be expected to reflect the true value, as agreed between reasonable prudent persons acting in the normal market conditions are the real basis to determine the market value. 14. The stand of the Opposite Party that Ext.2 was intentional sale has not been supported by any evidence or material on record. Even not a single question has been put/suggested to PW-2 that he did execute Ext.2 intentionally. So without having any clear and cogent evidence from the side of the Opposite Party, it is not permissible to say that Ext.2 was intentional or that the factum of acquisition of land was known to the public or PW-2 prior to the notification and therefore Ext.2 executed prior to the notification would be discarded. In absence of any evidence it cannot be assumed that Ext.2 was executed intentionally. Further from Ext.7 i.e. Hal Village Map of Village-Seepur, it is found that the Gharabari plots of the Petitioner situates adjacent to the village road and that road is a link road to the NH. At the same time, it is admitted in Ext.F (Form No. 9(B) L.A.A. No.11 of 2022 Page 10 of 13 schedule of houses) that there was two houses over the Gharabari plots of the petitioner. So it is clear that Plot No. 2484/6061 and 2535/5624 was fit for homestead. Therefore, having such locational advantages no justification was found in not considering Ext.2 for determination of the market price of the Gharabari land of the petitioner @ Rs.20,00,000/- per acre.” (Emphasis supplied) Similarly, so far as valuation of trees, the Court below, in paragraph – 17, observed as follows: “ 17. xxx Now coming to the value of the trees stood over the land of the petitioner prior to its acquisition, it reveals from Ext.E i.e. Form No. 9(A) regarding schedule of trees, there were 145 nos. of teak trees, 4 nos of Palash trees and one Tal tree and the Special LAO has assessed the total value of the trees amounting to Rs.1,05,742/-. But the Petitioner banking upon Ext.9 i.e. copy of the general selling rate of round timbers issued under Order No.15/T/Project/RTI/64/2017-18 dtd. 12.03.2021 by the Public Information Officer, OFDC Ltd., Head Office, Bhubaneswar, has asserted that the value of the trees would have been more. Nothing has been mentioned in Ext. E or material in the record on what basis the value of the trees was assessed. It is needless to mention here that no objection was raised by the Opposite Party to admit Ext.9 in the present case produced by the Petitioner. Out of the total trees mentioned in Ext.E there are 84 nos. of L.A.A. No.11 of 2022 Page 11 of 13 teak trees having its girth 45 to 59 cm and length 5 meters and above. As per the rate chart mentioned in Ext.9 a teak tree having 45-59 cm of girth and 5 meters and above length its selling price is Rs.32,344/-. Hence as per Ext.9 the value of such 84 nos. of teak trees is of Rs.32,344/- x 84 = Rs.27,16,896/- At the same time the value of the rest of teak, tala and palash trees cannot be assessed as per Ext.9 because there is no valuation chart for the trees like tala and palash and the teak trees having girth below 45 cm. The Petitioner has also not produced any other evidence to assess the value of the trees like tala, palash and teak trees having below 45 cm of girth. The only evidence available is Ext.E. Hence as per Ext.E the value of such 66 numbers of trees (teak, tala and palash) is of Rs.44,426/-. Therefore the total value of 150 numbers of trees is of Rs.27,16,896/- + Rs. 44,426/- = Rs.27,61,322/-.” (Emphasis Supplied) 6. In view of the above findings of the Court below so also on perusal of the lower Court record, this Court is of the view that there being no perversity in the impugned award, the Appeal deserves to be dismissed. Accordingly, the same stands dismissed. 7. The present Appellant is directed to pay the differential amount, as ordered by the Court below, to the Respondent in terms of the observation made vide judgment L.A.A. No.11 of 2022 Page 12 of 13 dated 15.04.2021 passed in L.A. Case No.01 of 2020 within a period of six weeks from the date of receipt of the certified copy of this order. (S.K. MISHRA) (JUDGE) Orissa High Court Dated, 6th February, 2024/Padma Signature Not Verified Digitally Signed Signed by: PADMA CHARAN DASH Designation: Personal Assistant Reason: Authentication Location: orissa high court, cuttack Date: 12-Feb-2024 20:07:28 L.A.A. No.11 of 2022 Page 13 of 13