Misc. Case No. 57 of 2012 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK L.A.A. No.22 of 2015 (In the matter of an application under Section 54 of the Land Acquisition Act, 1894) Dhulia Naik ....... Appellant -Versus- Land Acquisition Collector, Angul-Duburi-Sukinda Road New B.G. Rail Link Project, Dhenkanal ....... Respondent Advocate for the parties For Appellant : Mr. A. Tripathy, Advocate For Respondent : Mr. B. Panigrahi, Addl. Standing Counsel ---------------------------- CORAM: JUSTICE SANJAY KUMAR MISHRA --------------------------------------------------------------------------------- Date of Hearing: 11.09.2024 Date of Judgment: 08.11.2024 --------------------------------------------------------------------------------- S.K. Mishra, J. This Appeal has been preferred against the Judgment dated 08.12.2014 passed by the Civil Judge (Senior Division), Kamakhyanagar in L.A. Misc. Case No.57 of 2012 for further enhancement of compensation. 2. The brief facts which lead to filing of this appeal is that land belonging to the Appellant measuring total area of Ac.0.81 decimals appertaining to four plots i.e. Ac.0.31 decimals from the Plot No.795, kisam- Jalasaya, Ac.0.04 decimals from Plot No.798 described as Adi, Ac.0.32 decimals from Plot No.800 and Ac.0.14 decimals from Plot No.805, both are of Sarada-III kisam, appertaining to Khata No.40 of Mouza-Siarimalia were acquired by the Special Land Acquisition Officer, shortly, ‘LAO’ for the purpose of construction of Angul-Dubri- Sukinda Road New B.G. Rail Link Project vide Notification No.48381 dated 26.11.2010 published under Section 4(1) of the Land Acquisition Act, 1894, shortly, ‘the Act, 1894’. The LAO assessed the cost of the land @ Rs.50,000/- per acre for Jalasaya & Adi kisam of land and @ Rs.30,000/- per acre for Sarad-III kisam of land. The private Respondent received a sum of Rs.1,89,059/- towards compensation from the LAO, which includes market price of the acquired land, compensation for earth work for the pond and adi, compensation for standing L.A.A. No.22 of 2015 Page 2 of 16 trees thereon and filed a protest petition in terms of Section 18 of the Act, 1894 to refer the matter to the Civil Court. After the reference was made to the Civil Court, the said petition was registered as L.A. Misc. Case No.57 of 2012 before the Court of Civil Judge (Senior Division), Kamakhyanagar. The Court below, after permitting the parties to lead evidence, passed the impugned Judgment
Legal Reasoning
by confirming the market price of the land awarded by the LAO. However, it awarded an amount of Rs.15,000/- towards damages for the severance and Jalasaya and an additional compensation of Rs.13,750/- towards the earth work of the Jalasaya and Adi and directed the present Respondent to pay the differential amount along with the statutory benefits as per the Act, 1894. Hence, this Appeal. 3. This Appeal has been preferred basically on the ground that the impugned Judgment is contrary to law so also evidence on record. The Court below did not consider the fact of acquisition of pond, which caused loss of potentiality so also productivity of the adjacent L.A.A. No.22 of 2015 Page 3 of 16 plots i.e. Plot Nos.800 and 805, which are of Sarad-III kisam. Further, the Court below failed to take into consideration the value of Sarad-III kisam land and valued it at Rs.30,000/- only, instead of Rs.60,000/- per acre. A further ground has been urged that the LAO acquired Ac.0.32 decimals of land out of an area of Ac.0.52 decimals of Plot No.795 of Jalasaya kisam. The Appellant was getting Rs.32,000/- per year from pisciculture from the said plot. As more than 50% area was acquired by the LAO, the pond lost its capacity of pisciculture. The LAO did not consider the income from the pond. It has further been stated that an area of Ac.0.04 decimals, out of Ac.0.11 decimals of Plot No.798 of Adi kisam was acquired. There were about 200 valuable standing trees like Sala, Mahula, Kendu, Asana and Mango over Plot Nos.800, 805, 795 & 798 whereas, the LAO has only awarded compensation for three Mahula standing trees. The value of each tree is not less L.A.A. No.22 of 2015 Page 4 of 16 than Rs.4,000/-. The Court below, without considering the market value, confirmed the valuation set by the LAO. The referral Court, without considering the valuation report of the Forest Department marked as Ext.2, passed the impugned Judgment, whereas the Appellant or his legal heirs would have got more than Rs.5,00,000/- towards loss of standing trees. 4. Reiterating the grounds urged in the Memorandum of Appeal, learned Counsel for the Appellant submitted that the Court below failed to take note of the evidence on record that Plot Nos.800 & 805 were irrigated land and the Appellant was harvesting food crops in his field and the compensation awarded should have been more. Further the Court below disbelieved Ext.4 i.e the report of the Sub-Registrar, Kamakhyanagar, on the ground that those sale transactions were interested sale deeds. The Court below should have taken into consideration the Ext.4 for re- determination of the compensation amount. L.A.A. No.22 of 2015 Page 5 of 16 5. Learned Counsel for the Appellant further submitted that Plot No.795 was of kisam-Jalasaya. Admittedly, out of Ac.052 decimals of Plot No.795, Ac.0.32 decimals was acquired and rest of the Jalasaya lost its potentiality for pisciculture. The Appellant also lost his income from the pisciculture. But the Court below failed to take note of the said admitted evidence on record for the purpose of considering the prayer of the Appellant for enhancement of the compensation. Learned Counsel for the Appellant further submitted that though certified copy of list of standing trees were obtained under the R.T.I. Act and exhibited as Ext.2, but the Court below has not awarded proper compensation for the standing trees on the acquired land. Apart from that, though the Appellant, who was the claimant before the Court below, filed certified copy of the order dated 27.03.2004 passed by the Court below in L.A. Misc. Case No.128 of 2000, but it failed to take note of the said Judgment while passing the impugned judgment. Hence, the impugned L.A.A. No.22 of 2015 Page 6 of 16 Judgment dated 08.12.2014 passed in L.A. Misc. Case No.57 of 2012 deserves interference. 6. Per contra, learned Counsel for the State- Respondent submitted that the Court below has rightly allowed the claim of the Appellant/Claimant partly by ordering to pay extra amount towards earth work of the jalasaya and Adi to the tune of Rs.13,750/- and Rs.15,000/- towards damages of severance and Jalasaya. There being no infirmity in the impugned Judgment passed in L.A. Misc. Case No.57 of 2012, the present Appeal deserves to be dismissed. 7. In view of the submission made by the learned Counsel for the parties, on perusal of the L.C.R., it is ascertained that in the Objection Petition filed under Section 18 of the Act, 1894, the Appellant, being the Claimant, specifically stated that the situation, potentiality, fertility and other characteristics of the land at the time of fixation of compensation have not been taken into consideration by the LAO. That apart, a stand has also been taken in the Objection Petition that due to L.A.A. No.22 of 2015 Page 7 of 16 acquisition of the Jalasaya, rest area of Ac.0.28 decimals under both Plot Nos.795 & 798 have been damaged and the Acquisition Authority has not considered the said aspect as to the cost of severance for the said 28 decimals of land. That apart, a specific stand has been taken in Section 18 Application/Objection that all the acquired plots under Khata No.40 are adjacent to N.H.200 and situated nearby the Basti having potential of Gharabari kisam. That apart, the present Appellant (Petitioner before the Court below), who deposed as P.W.1, stated in his examination-in-chief regarding destroying the entire area of the pond by acquiring only Ac.0.31 decimals out of area Ac.0.52 decimals so far as plot No.795 is concerned, so also partial acquisition of Ac.0.04 decimals out of Ac.0.11 decimals of Plot No.798 i.e. Adi (ridge) of the acquired plot. P.W. No.1 also deposed regarding awarding of compensation improperly towards earth work so also his income from pisciculture and harvesting double crop from the acquired Plot Nos.800 & 805. Specific evidence was also led regarding value of the L.A.A. No.22 of 2015 Page 8 of 16 trees, as detailed in para-15 of the Affidavit evidence. Most of the statements of examination-in-chief remained untouched during cross-examination of P.W.1. The fisherman, who was catching fish, was also examined as P.W.2, who detailed about the income of the Appellant/Claimant from pisciculture so also loss caused to the Appellant/Claimant due to acquisition of the part of the said pond. Most of his statements also remained untouched during his cross-examination. As it seems, the Court below has not taken into consideration the said admitted evidences on record. Apart from that, though Form 9A (Schedule of Trees) was exhibited by the Appellant/Claimant, which details as to the kind, number so also size of the trees, the Court below erroneously observed that except few trees the rest trees are very small trees having girth of about 1 ft. or below, thereby declined to further enhance the compensation pertaining to those remaining standing trees on the acquired plots. L.A.A. No.22 of 2015 Page 9 of 16 8. That apart, as is revealed from Ext.4, the Court below, though took into consideration Ext.4, did not take into consideration the contents of the said document for the purpose of enhancing the compensation on the ground that almost all the sale transactions were made between one Dasarathi Nayak and one Anjali nayak and the land transacted between them are part of same Khata i.e. Khata No.77, with further observation that although the area of all lands transacted through different sale deeds vary from Ac.0.04 decimals to Ac.0.36 decimals, but the consideration money paid for all the sale deeds remains the same i.e Rs.46,200/-. While observing so, the Court below did not take into consideration the remaining sale transaction on the ground that the kisam of land being Taila, cannot form the basis for deciding the market price of Sarad kisam of land. Admittedly, Sarad kisam land is much better than Taila kisam of land. Ext.4 indicates that so far as sales statistics of Taila kisam of land of village Siarimalia of Khata No.58, Plot No.931 of Ac.0.28 decimals of land was sold for an L.A.A. No.22 of 2015 Page 10 of 16 amount of Rs.15,400/- which comes to Rs.550/- per decimal, thereby the rate of Taila kisam of land of the same village was sold @ Rs.55,000/- per acre. But the Court below confirmed the compensation @ Rs.30,000/- per acre assessed and awarded by the LAO for Sarad-III kisam of land. 9. Admittedly, in order to oppose the prayer of the present Appellant/Claimant for further enhancement of compensation, the State did not lead any oral evidence. Only the working sheet prepared by the LAO was marked as Ext.A on admission. So far as the potentiality of the land is concerned, specific evidence was led by the Appellant/Claimant and in Section 18 Application/ Objection, it was specifically stated regarding the potentiality of the acquired plots so also its situational advantages in para-4 of the said Objection. Evidence was also led through P.W.1 to substantiate the said claim. P.W.1 also deposed that due to severance of his acquired pond, he lost his annual income from pisciculture and irrigation facilities for ever and other agricultural lands L.A.A. No.22 of 2015 Page 11 of 16 have been also affected due to such severance. P.W.1 also deposed that the State-Opposite Party has acquired 75 numbers of different kinds of trees (big and small size) from the boundary of Plot Nos.798, 800 and 805 and he is entitled to compensation as per the previous order passed in favour of one Dama Nayak, who is his neighbour. In para-15 of his Affidavit Evidence P.W.1 has also stated about the enhanced compensation he is entitled to for the acquired trees and during cross- examination the said evidences remain untouched. The Court below failed to take note of the said admitted evidence on record while re-determining the compensation for acquisition of land so also compensation of standing trees on the acquired lands/plots. 10. Though in the Section 18 Application/ Objection, the Claimant/Petitioner claimed higher compensation for the lands on the ground of potentiality of acquired land, but in para-8 of the impugned judgment the Court below, relying on the notes of argument and L.A.A. No.22 of 2015 Page 12 of 16 the submissions made by the learned Counsel for the Appellant/Claimant, made an observation that the learned Counsel did not put forth any claim for considering the compensation with regard to the market value of acquired land and confined the argument with regard to earth work of acquired pond and damages sustained by the Appellant/Claimant due to part acquisition of the pond. Accordingly, the impugned judgment was passed confining to the alleged submissions made by the learned Counsel for the Appellant/Claimant before the Court below. 11. Law is well settled that even if the Petitioner/Claimant has prayed for a lesser amount, if after recording evidence, the referral Court finds that the Petitioner/Claimant is entitled to more compensation, it should award more compensation than what has been claimed by the Petitioner/Claimant. The Supreme Court in Ambya Kalya Mhatre (dead) through LRs. & ors. Vs. State of Maharashtra, reported in (2011) 9 SCC 325, vide paragraph 29 held as follows: L.A.A. No.22 of 2015 Page 13 of 16 the market value before “29. The Collector making the offer of compensation on behalf of the State is expected to be fair and reasonable. He is required to offer compensation based on Unfortunately, value. the market Collectors invariably offer an amount far less than the real market value, by erring on the safer side, thereby driving the landowner first to seek a reference and prove the Reference Court and then approach the High Court and many a time this Court, if he does not get adequate compensation. In most land acquisitions, the land acquired is the only source of livelihood of the landowner. If the compensation as offered by the Collector is very low, he cannot buy any alternative land. By the time he fights and gets the full market value, most of the amount would have been spent in litigation and living expenses and the price of lands would have appreciated enormously, making it impossible to buy an alternative land. As a result, the landowner seldom has a chance of acquiring a similar land or an equal area of similar land. It would be adding insult to injury, if the landowner should be tied down to a lesser value claimed by him in the reference application, even though he was not required by law to mention the amount of compensation when seeking reference. The Act contemplates the landowner getting the market value as compensation and no technicalities should come in the way of the landowner getting such market value as compensation.” (Emphasis Supplied) L.A.A. No.22 of 2015 Page 14 of 16 12. Admittedly, though the Appellant/Petitioner in the protest petition filed under Section 18 of the Act, 1894 claimed more compensation for the agricultural lands and also led evidence to the said effect, but the Court below confined the adjudication of enhancement of compensation to land of kisam ‘Pond’ and ‘Adi’ and earth work on the ground of alleged argument advanced by the
Legal Reasoning
learned Counsel for the Appellant/Petitioner. 13. In view of the detailed discussions made above so also the settled position of law, the impugned judgment deserves interference. Accordingly, the said judgment dated 08.12.2014 passed in L.A. Misc. Case No.57 of 2012 is set aside and the matter is remitted back to the Court below for re-determination of the compensation amount keeping in mind the observations made in the foregoing paragraphs so also evidence on record and the settled position of law. It is made clear that the Court below shall re- determine the compensation based on the evidence on record and conclude the same at the earliest, preferably L.A.A. No.22 of 2015 Page 15 of 16 within a period of four months from the date of production of the certified copy of this Judgment. It is made further clear that if the Appellant/Claimant has already been paid in terms of the impugned order dated 08.12.2014 passed in L.A. Misc. Case No.57 of 2012, while re-determining the compensation, the amount which has already been paid, if any, has to be deducted/adjusted from the re-determined amount. 14. With the said observation, the appeal stands
Decision
allowed and disposed of. …….…………………… S.K. MISHRA, J. Orissa High Court, Cuttack. Dated, the 8th November, 2024/Prasant Signature Not Verified Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 11-Nov-2024 17:24:03 L.A.A. No.22 of 2015 Page 16 of 16