Misc. Case No. 33 of 2008 · The High Court · 2023

Judgment

23.11.2023 ________________________________________________________________ S.K. MISHRA, J.

1. The present Appeal has been preferred against the judgment dated 28.01.2009 passed by the Civil Judge (Senior Division), Kamakhyanagar, in L.A. Misc. Case No.33 of 2008, vide which the Court below determined the value of Sarada-III kisam land at the rate of Rs. Rs.64,000/- per acre.

2. Facts of the case, in short, are that the land of the private Respondents (Petitioners before the Court below) was acquired for establishment of Rengali Irrigation Project and in L.A.A. No.92 of 2010 lieu thereof, the Land Acquisition Officer awarded compensation of Rs.48,104/- in favour of the Respondents @ Rs.24,900/- per acre for Sarada-III kisam of land, which includes other statutory benefits. Being aggrieved by the said award, the Respondents filed a protest petition, which being referred to the Referral Court, was registered as L.A. Misc. Case No.33 of 2008. In the said proceeding, the Referral Court, after taking evidence led by the Parties, determined the compensation amount @ Rs.64,000/- per acre for Sarada-III kisam of land apart from all statutory benefits, as provided under Section 28 of the Land Acquisition Act, 1894, in short, “The Act”. Being aggrieved by the said judgment, the State has preferred the present Appeal.

3. Though this Appeal has been listed under the heading “Fresh Admission”, on being noticed in the matter of limitation, private Respondents have already rendered appearance. The

Legal Reasoning

learned Counsel for the Respondents is absent on call. The Lower Court Records being called for, is available for reference. The Appeal being of the year, 2010, is pending for the last 13 years. As the L.C.R. is available, on consent of Mr. Panigrahi, learned ASC for the State-Appellant, the matter is taken up for hearing and final disposal. L.A.A. No.92 of 2010

4. Mr. Panigrahi, learned ASC for the State-Appellant submits, the State Government acquired Ac.1.30 decimals of Sarada-III kisam of land under Khata No.204/187 appertaining to Plot No.2631/3316 in Mouza-Bhagirathipur Sasan of the private Respondents and awarded compensation of Rs.48,104/- per acre along with statutory dues payable to the Respondents. As the Respondents received the said compensation amount with protest and filed petition to the said effect, the same being referred to the Court blow, relying on the judgment passed in L.A. Misc. Case No.174 of 2007, which was marked as Ext.2, the Court below enhanced the rate to Rs.64,000/- per acre, instead of Rs. 24,900/- per acre, as held by the Land Acquisition Officer.

5. Mr. Panigrahi, drawing attention of this Court to Paragraph-6 of the impugned judgment submits, the P.W.1, in his cross examination, admitted that Sarada-II kisam of land is superior to Sarada-III kisam of land and the yielding of Sarada-II kisam of land is more than Sarada-III kisam of land of the said locality. He has also admitted in his cross-examination that the valuation of Sarada-II kisam of land was Rs.38,000/- per acre at the time of acquisition. Despite such admission by P.W.1, who was one of the claimants before the Court below, the impugned L.A.A. No.92 of 2010 award was passed relying on the judgment in LAA Misc. Case No.174 of 2007, in which the Court below awarded a compensation of Rs.64,000/- per acre for Sarada-III kisam of land, with an observation that the same has already been paid to the claimants in the said case. Mr. Panigrahi further submits, though Sarada-II kisam of land cannot be equated with Sarada-III kisam of land, the Court below was not justified to enhance rate of compensation when the valuation of Sarada-II kisam of land was Rs.38,000/- per acre at the time of acquisition.

6. In view of the said submissions made by the learned ASC for the Appellant so also after perusal of the evidence led before the Court below, this Court thinks it appropriate to extract the relevant portion of Paragraph 8 of the impugned award. “ 8. xxxx The O.P. has accepted capitalisation process when contemporaneous sale deeds were available for consideration at the time of acquisition of the case land. However, in the present case this court is to pay respect to the judgment of this court in which one Jugal Kishore Mohapatra has already received Rs.64,000/- per acre for Sarada-III kissam of land in L.A. Misc. Case No.174/07. As the kissam and the standard of L.A.A. No.92 of 2010 lands are almost same and the acquired land is near the land of Jugal Kishore Mohapatra, this court has got no scope to distinguish and to pay lessor amount of compensation when the O.P. has failed to establish the same. When previous decision of the court may afford a basis for determination of market value in a subsequent proceeding in a similar nature, this court is under obligation to consider the judgment of this court. Therefore, it appears to be just and proper to adopt the same rate as determined in the L.A. Misc. Case No.174/07 which is marked vide Ext.2. Therefore the petitioners are held entitled to compensation at the enhanced rate of Rs.64,000/- per acre. Hence, ordered.” (Emphasis supplied)

7. As is ascertained from the L.C.R., the P.W.1 stated during his cross-examination that Sarada-II kisam of land is better than Sarada-III kisam, depending on the gross yield of Sarada-II kisam of land in the said locality. That apart, law is settled that when the bench mark valuation of the land of a locality is available, which is one of the important decisive factors to determine or enhance the compensation amount, the capitalization method should not be adopted for determining so. As Sarada-III kisam of land is better than Sarada-II kisam, a wrong concession made by a witness during cross-examination L.A.A. No.92 of 2010 as to which kisam of land is better, cannot be ground to interfere with the judgment.

8. Since the Court below relying on the judgment passed in L.A. Misc. Case No.174 of 2007, which was marked as Ext.2, determined the compensation amount @ Rs.64,000/- per acre, there being no infirmity in the impugned judgment, this Court is not inclined to interfere with the same. Accordingly, the Appeal stands dismissed.

9. In view of the dismissal of the Appeal, the State- Appellant is directed to deposit the enhanced differential compensation amount with statutory dues, if any, within a period of six weeks from the date of production of the certified copy of this judgment with the Court below in Execution Case No.06 of 2011, to be disbursed in favour of the Respondents (Petitioners before the Court below) within two weeks there after. Signature Not Verified Digitally Signed Signed by: PADMA CHARAN DASH Designation: Personal Assistant Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 28-Nov-2023 10:44:27 Orissa High Court, Cuttack Dated, 23rd November, 2023/Padma (S.K. MISHRA) JUDGE L.A.A. No.92 of 2010