Allowed

Tilottama Nayak v. Spl.Land Acquisition

Orissa HC2 Sept 2024LAA/115/2013

Case brief

AI extract

What is this about?

This appeal challenges the compensation awarded for land acquisition. The High Court held that the highest value of similar lands should be considered. It directed enhanced compensation based on sales of Sarada-III lands adjacent to a National Highway with a 10% annual increase, but refused additional compensation for the pond embankment, modifying the lower court's judgment to re-determine damage

What did the court decide?

Impugned judgment modified; Respondent to re-determine compensation at Rs. 2,00,000/- per acre including statutory dues within three months.

Tilottama Nayak Vs Spl.Land Acquisition — Land Acquisition | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA, CUTTACK

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L.A.A. No.115 of 2013

Tilottama Nayak

....... Appellant

-Versus-

Special Land Acquisition Officer, Angul-Duburi-Sukinda Road, New B.G. Rail Link, Dhenkanal

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....... Respondent

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For Appellant : Mr. N. Panda, Advocate For Respondent : Mr. B. Panigrahi, Addl. Standing Counsel

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CORAM: JUSTICE SANJAY KUMAR MISHRA

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-------------------------------------------------------------------------------------Date of Hearing: 12.07.2024 Date of Judgment: 02.09.2024

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S.K. MISHRA, J.

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1. This Appeal has been preferred against the Judgment dated 31.07.2013 passed in LAMC No.41/12 by the Civil Judge (Sr. Div.) Kamakhyanagar, vide which the Court below confirmed the compensation amount as determined by the Land Acquisition Officer (LAO) so also directed the LAO to pay additional Rs.10,000/-for damage caused to the embankment of

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pond belonging to the Appellant and also ordered for payment of

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all the statutory benefits on such additional amount of Rs.10,000/-.

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2. The brief facts, which led to filing of the Appeal are that, an area of Ac.0.60 decimals appertaining to Plot No.99 of Taila-II Kissam under Khata No.07 of Mouza- Gopigadia was acquired by the Govt. for the purpose of Angul-Duburi-Sukinda Rail Link Project, vide Notification No.18764 dated 10.05.2010, published under Section 4(1) of L.A. Act. The LAO assessed the compensation in total at Rs.40,000/- per acre and a notice under section 12(2) of the L.A. Act was issued to the Appellant to receive compensation amount of Rs.72,022/- including the market price of the acquired land along with other statutory benefits provided under the L.A. Act. Being dissatisfied with the compensation amount, the Appellant filed his written objection before the L.A. Collector and received the compensation under protest.

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3. Based on the pleadings of the parties, the Court below framed the following issue:-

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i) Whether the Appellant/ Petitioner is entitled to have an amount of higher compensation than the amount settled by the O.P?

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4. The said issue was dealt with and answered by coming

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to a conclusion that the market price of the acquired land as

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determined by the Special LAO is correct and the Appellant is entitled to get the compensation of Rs.10,000/- more for damage caused to the embankment of pond so also other benefits as per the statute on such additional compensation of Rs.10,000/-.

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5. The Appellant has preferred this appeal on the following grounds that, the land of the Appellant measuring Ac.0.60 decimals was compulsorily acquired by the Govt. and though the ROR reflects that the Kissam of the acquired land is Taila-II, she had excavated a pond over the land by spending huge money and undertaking Pisciculture over the same, from which she was earning Rs.40,000/- per year as net income. Though at the time of acquisition, the acquired land was a pond, since it is adjacent to N.H-200 and G.P. road, it has a great potentiality to be converted into homestead land, but the same has not been taken into consideration by the court below. Thus, the impugned judgment is liable to be interfered. Further, since the Govt. acquired Ac.0.60 dec. out of total plot measuring Ac.2.00 from the middle for rail line, remaining Ac.1.40 dec. of land has become scattered and useless, for which she sustained considerable damage.

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6. Learned Counsel for the Appellant submitted that, the registered sale deed as under Ext.3 i.e. certified copy of the RSD

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No.43 of 1999 & Ext.4 i.e. certified copy of RSD No.1380 of 2009 should have been taken into consideration by the Court below for reasonable guess work of determination of the market value which would have increased the market value of the acquired land. Similarly, the State Opposite Party exhibited the working sheet, which reflects the transaction regarding the RSD dated 29.10.2008, the Court below failed to take note of the said document for determination of market value of the acquired land.

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As regard to the valuation of the acquired land, learned counsel for the Appellant further submitted that, Ext.3 i.e. RSD No.43 of 1999, in respect of the land in village- Gopigadia shows that Sarad-III kissam of land has been sold at Rs.1,75,000/- per acre as on 15.01.1999. Similarly, Ext.4 i.e. RSD No.1380 of 2009 in respect of land of adjacent Village-Altuma, proves that SaradIII kissam of land has been sold at Rs.4,40,000/- per acre on 02.12.2009.The working sheet, marked as Ext. A, shows that land in village- Gopigadia of Sarad-III kissam has been sold at Rs. 2,67,437 per acre on 29.10.2008.

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It was further submitted by the learned Counsel for the Appellant that, though the above transactions are of much before the date of Notification dated 10.05.2010 under section

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4(1) of LA Act, unfortunately the Special LAO has awarded only Rs.40,000/- per acre ignoring the market value of the land. The bench mark valuation is a minimum value for collection of registration fees only. Further, the sale deed for Taila-II or Tank has not been collected by the LAO. Depending upon the potentiality of the land, market value of Sarad-III kissam of land is comparatively less than market value of Taila-II. Moreover, the excavation of Tank over the land and Pisciculture is of more value, with more generation of income.

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It was further submitted by the learned Counsel for the Appellant that, the acquired map shows that, there is severance of land/pond resulting in damage of land position and the Appellant has not yet got the R & R package as per R & R Policy, 2006 of the Government. Further, the Court below, relying upon Ext.5 i.e. Letter of Asst. Engineer, Kamakhyanagar addressed to the Executive Engineer, R & R, Division, Dhenkanal, has directed to pay Rs.10,000/- for embankment only which is not proper consideration of the matter. Thus, the Appellant is entitled to cost of severance, loss of earning, besides the highest land value as per Ext. 4 and/or Ext. A, with 15% growth per year, as available in the record, along with all statutory benefits.

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Mr. Panda further submitted that besides all these,

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since the Appellant is a Schedule Caste woman and her income has been seriously affected by acquisition of the land, her prayer for enhancement of compensation needs sympathetic consideration and the Court below failed to take note of the said fact.

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7. To substantiate his submission, learned Counsel for the Appellant relied on the judgments of Supreme Court in

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Mehrawal Khewaji Trust (Regd.) Faridkot & Ors. Vs. State of

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Punjab & Ors reported in AIR 2012 SC 2721 and Sri Rani M. Vijayalakshmamma Rao Bahadur, Ranee of Vuyyur Vs. The

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Collector Of Madras , reported in (1969) 1 MLJ 45 (SC), in which it was held that, in the case of a compulsory acquisition of land, the highest value has to be accepted. Thus, in the present case, the Appellant is entitled to compensation, @ Rs. 4,40,000/, as per Ext.4, even if the said RSD pertains to an agricultural land.

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8. In response to the submissions made by the Learned Counsel for the Appellant, learned Counsel for the StateRespondent submitted that, the Appellant has never challenged the valuation of Taila-II Kissam land of village-Gopigadia and compensation was given to the Appellant as per the Kissam of the land. No compensation was given for the tank, as the

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Appellant had failed to prove that she had excavated a pond over the acquired plot.

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It is the stand of the State-Respondent that, Since P.W.1 is the husband of the Appellant, he will naturally support the Appellant and Ext.5 i.e. letter of Asst. Engineer, Kamakhyanagar, addressed to the Executive Engineer, R & B, Division, Dhenkanal, which has been heavily relied on by the Appellant to prove that there was a tank over the acquired plot, it is found that, the Asst. Engineer in his letter has mentioned that only the embankment of pond, having length 100 feet, breadth 25 feet 8 inch and 4 feet 6 inch height, situated over plot no. 99 of khata no. 7 is required for acquisition for the purpose of Angul-Duburi-Sukinda Rail Link Project and a copy of the same was sent to Special LAO with a request to depute concerned Amin and R.I for re-verification of the acquired land, if required. However, the genuineness of Ext.5 was not challenged.

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It is also the stand of the State-Respondent that, since the Appellant has already excavated a tank over the acquired land, it is beyond imagination to be fit for homestead purpose. Further, the contention of the Appellant that, after acquisition of the land her tank has become useless is baseless, as only Ac.060 decimals of land, out of Ac.2.00 decimals, has been acquired by

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the Government. Remaining land being a big patch of land, measuring an area of Ac.1.40 decimals remained in tact for use of the Appellant. The Appellant neither adduced any evidence to prove that the acquisition was just in the middle of the pond nor she prayed for appointment of a Commissioner to demarcate the land so also to clarify about the exact position of the acquired land vis-à-vis the pond.

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9. As is revealed from the impugned judgment so also LCR, the Appellant examined only one witness as P.W.1, who is the husband of the Appellant. In support of her stand, she relied on six documents, which were marked as Ext. 1 to Ext.6. On the other hand, no witness was examined on behalf of the StateRespondent. However, on the prayer of the learned A.G.P., the attested copy of the working sheet relating to the Mouza of the acquired land was marked as Ext. A.

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10. In view of the submissions made by the learned Counsel for the parties, before dealing with the issue as to whether the present Appellant (Petitioner before the Court below) is entitled for further enhanced compensation, it would be apt to reproduce below Paragraphs 10 & 11 of the impugned judgment:

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“10. In order to prove that there was a tank over the acquired plot, the petitioner relied heavily on Ext.5. Since P.W.1 is the husband of the petitioner naturally, he will support her. So

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much importance cannot be given to the oral evidence of P.W.1. Coming to the letter of Asst. Engineer R & B Kamakhyanagar Sub-division vide Ext.5, it is found that the said Asst. Engineer in his letter to Executive Engineer has mentioned that only the embankment of pond having length 100 feet, breadth 25 feet 8 inch and 4 feet 6 inch height situated over plot no.99 of khata no.7 is required for acquisition for the purpose of Angul-Duburi Sukinda Rail Link Project. The copy of the said letter has been sent to Special Land Acquisition Officer with a request to depute concerned Amin and R.I. for re- verification of the said land if required. Referring to this letter, the learned counsel for the petitioner submitted that there was a pond over plot no.99 at the time of acquisition of the land. Genuineness of Ext.5 was not challenged, let alone controverted. But on mere reading of Ext.5, it is very much evident that only the embankment of the pond was acquired by the Govt. for the rail link project. Law is quite settled that witness may lie but documents cannot. The contents of Ext.5 itself contradicts the statement of P.W.1 that the middle portion of her tank was acquired.

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11. In her petition before the Land Acquisition Officer, the petitioner claimed that the land is situated by the side of the N.H.200 and having added advantages and potentiality of a homestead land. When she has already excavated a tank over the said plot, it is out of imagination that as to how the so called pond can be fit for homestead purpose in the present form. Of course the sketch map of the village reflects that the land is situated adjacent to the N.H.200. The entire land of plot no.99 comprises an area of Ac.2.00, out of which only Ac.0.60 decimals was acquired. From the village map, it is clear that the southern embankment of the pond has been acquired for the proposed rail link project. Even after acquisition of Ac.0.60 decimals a big patch of land measuring an area Ac.1.40 decimals has remained intact for use of the petitioner. No other evidence was adduced by the petitioner to prove that acquisition was just in the middle of the pond. She did not pray for appointment of a commissioner to demarcate the

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land and to clarify about the exact position of the acquired land, vis a vis the pond. The remaining part is also adjoining to the N.H. On the northern side. Therefore, the contention of the petitioner that after acquisition of the land her tank has became useless, has got no basis. It has already been proved through Ext.5 that only the embankment of the pond has been acquired. So, in my opinion, the acquisition of the embankment, in no way, is going to make the rest of the pond useless for use. However, it is admitted that market price of acquired land was fixed on the basis of Taila-2 kissam and no compensation was awarded in respect of the Pond. No doubt, the petitioner has sustained loss due to acquisition of embankment of the said pond. However, from the materials on record, I am of the firm opinion that the petitioner should be adequately compensated for loosing the embankment of the pond due to compulsory acquisition . In my considered view, a sum of Rs.10,000/- in respect of embankment of pond be granted to the petitioner in addition to the compensation already awarded and received by her in respect of land. Hence ordered.”

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(Emphasis Supplied)

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11 . In view of the said findings of the Court below so also on perusal of the LCR, it can be well ascertained that though the Kissam of land in ROR is “Taila-II”, but the stand of the Appellant-Petitioner that the Appellant excavated pond over the land by spending huge money is a fact, as Ext.5, which was obtained by the present Appellant (Petitioner before the Court below) under the Right to Information Act and was marked as Ext.5, even though with objection during re-examination of PW No.1 on recall on 16.07.2013, well-demonstrates that the

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Assistant Engineer Kamakhyanagar (R & B) Sub-Division wrote to the Executive Engineer (R & B) Division Dhenkanal in response to his Memo No.3959 dated 16.05.2012 indicating therein that only the pond embankment having length of 100 feet, breadth of 25 feet 8 inch and 4 feet 6 inch height situated over plot No.99 of Khata No.7 of the present Appellant is required for the purpose of Angul-Duburi-Sukinda Rail Link Project and the said communication details the area of the said plot, to be acquired for the said purpose.

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12 . Apart from the same, the said document also welldemonstrates that a copy of the said communication was marked to the Special Land Acquisition Officer, Dhenkanal for confirmation and necessary action with a request to depute concerned Amin and R.I. for reverification of the said land in the said plot again, if so required. Hence, on conjoint reading of the evidence of P.W.1 with Ext.5, it can be well visualized that though the Kissam of the land acquired by the State in the ROR was Taila-II, but the Appellant/Petitioner had physically converted the said Kissam of Land to a pond (Jalasaya) for the purpose of pisciculture before the acquisition and the Court below should not have disbelieved the evidence of P.W.1 on the ground that he is the husband of the present

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Appellant/Petitioner and interested witness, despite coming to a conclusion, based on Exhibit-5, that the concerned Engineer in the said letter has mentioned that only the embankment of the pond having length of 100 feet, breadth 25 feet 8 inch and 4 feet 6 inch height, situated over Plot No.99 of Khata No.7, is required for acquisition for the purpose of Angul-Duburi-Sukinda Rail Link Project.

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13 . However, this Court is of the view that the Court below rightly disbelieved the statement of the P.W.1 that the middle portion of the said tank was acquired for the purpose of the said project leaving the rest part of the said pond useless, in absence of any petition at the instance of the present Appellant/Petitioner to appoint and depute a Commissioner to demarcate the land and to clarify about the exact position of the acquired land vis-àvis the pond.

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14 . Admittedly, as is revealed from the impugned judgment, the present Appellant-Petitioner was paid alleged market price for Taila-II Kissam of land and no compensation was awarded in respect of the pond. Accordingly, the Court below only awarded a sum of Rs.10,000/- in respect of acquisition of embankment of pond, to be paid to the Appellant/ Petitioner, in addition to the

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compensation already awarded in her favour, which she received under protest.

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15 . From the L.C.R., on conjoint reading of Ext.3 (RSD) with Ext.6, which is the village map of Mouza Gopigadia, it is ascertained that Plot No.32 of Sarada-III kissam of land, which is a small patch of land and adjacent to the N.H-200, was sold at consideration amount of Rs.7,000/- per Guntha (Rs.1,75,000/per acre). Similarly, Ext.A , which is the valuation sheet exhibited from the side of the State-Respondent read with village map marked as Ext.6, well demonstrates that Plot No.46, is of Sarada-III Kissam and the said land measuring an area of Ac.0.640 decimal was sold for a consideration amount of Rs.1,71,160/- @ Rs.2,67,437/- per acre. The said documents also prove that the said land belongs to mouza Gopigadia and in the same side of the N.H., though at a little bit distance from the suit land in the present Appeal, but is adjacent to N.H.200 and the consideration amount of the said land, as per RSD No.1240 dated 29.10.2008, was Rs.2,67,437/- per acre. Similarly, Ext.4 is a RSD, which was marked on admission, well demonstrates that the consideration amount for purchase of the said land in the adjacent village Alutumm was Rs.17,400/-per Gunth, which comes to Rs.4,35,000/- per acre. But the Court below failed to

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take into consideration the said documents on the ground that the Appellant (Petitioner before the Court below) failed to establish as to the locational advantage of the said land so also distance of the said land from the suit land. However, from Ext.3, so also Ext.A marked from the side of the State-Opposite Party, it is well-established that both the said Plot Nos.32 and 46 are of Kissam Sarada-III, and of the same mouza i.e. Gopigadia. The consideration amount for sale of the said plots were Rs.1,75,000/- and Rs.2,67,437/- per acre respectively. From the village map, which was marked as Ext.6, it is well evident that both the said lands are situated adjacent to the N.H. 200, as of the suit land i.e. Plot No.99, in Mouza Gopigadia, which belongs to the present Appellant/ Petitioner. However, Plot No.32 is more nearer to the suit land, but on the other side of N.H., where as Plot No.46 is in a little bit distance from the said land, but on the same side of the road, as of the suit land.

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16 . The Supreme Court in Mehrawal Khewaji Trust (Regd.) Faridkot & Ors. Vs. State of Punjab & Others reported in AIR 2012 SC 2721 held as follows:

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“ 14. This Court in Anjani Molu Dessai v. State of Goa and another, (2010) 13 SCC 710, after relying upon the earlier decisions of this Court in M. Vijayalakshmamma Rao Bahadur (supra) and Hansraj (supra) held in para 20 as under:

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"20. The legal position is that even where there are several exemplars with reference to similar lands, usually the highest of the exemplars, which is a bona fide transaction, will be considered."

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Again, in para 23, it was held that "the averaging of the prices under the two sale- deeds was not justified."

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15. It is clear that when there are several exemplars with reference to similar lands, it is the general rule that the highest of the exemplars, if it is satisfied, that it is a bona fide transaction has to be considered and accepted. When the land is being compulsorily taken away from a person, he is entitled to the highest value which similar land in the locality is shown to have fetched in a bona fide transaction entered into between a willing purchaser and a willing seller near about the time of the acquisition. In our view, it seems to be only fair that where sale-deeds pertaining to different transactions are relied on behalf of the Government, the transaction representing the highest value should be preferred to the rest unless there are strong circumstances justifying a different course. It is not desirable to take an average of various sale-deeds placed before the authority/court for fixing fair compensation .

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16. Based on the above principles, the market value as per Ext.A-61 dated 22.07.1977 was Rs. 1,39,130.43 per acre (Approx. Rs.1.40 lakhs per acre). The said sale-deed was two and a half years prior in time than Section 4(1) notification dated 22.12.1979. There is no reason to eschew the above sale transaction. It is also pointed out that the lands covered under Ext.A-61 are nearer to the lands of the appellants under acquisition. This Court has time and again granted 10% to 15% increase per annum. In Ranjit Singh v. Union Territory of Chandigarh (1992) 4 SCC 659 : (AIR 1993 SC 227 : 1992 AIR SCW 2863), this Court applied the rule of 10% yearly

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increase for award of higher compensation. In Delhi Development Authority v. Bali Ram Sharma and Ors. (2004) 6 SCC 533 : (AIR 2004 SC 4114 : 2004 AIR SCW 4538), this Court considered a batch of appeals and applied the rule of annual increase for grant of higher compensation. In ONGC Ltd. v. Rameshbhai Jivanbhai Patel (2008) 14 SCC 745 : (AIR 2008 SC (Supp) 465 : 2008 AIR SCW 5947), this Court held that where the acquired land is in urban/semi-urban areas, increase can be to the tune of 10% to 15% per annum and if the acquired land is situated in rural areas, increase can be between 5% to 7.5% per annum. In Union of India v. Harpat Singh and Ors. (2009) 14 SCC 375 : (AIR 2009 SC (Supp) 1422 : 2009 AIR SCW 5168), this Court applied the rule of 10% increase per annum. Based on the above principle, we fix the annual increase at 12% per annum and with that rate of increase, the market value of the appellants' land would come to Rs.1,82,000 per acre as on the date of notification.”

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(Emphasis Supplied)

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17 . Similarly, in Sri Rani M. Vijayalakshmamma Rao

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Bahadur, Ranee of Vuyyur Vs. The Collector of Madras , reported in (1969) 1 MLJ 45 (SC), the Supreme Court held as follows:

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“3. It seems to us that there is substance in the first contention of Mr. Ram Reddy. After all when the land is being compulsorily taken away from a person, he is entitled to say that he should be given the highest value which similar land in the locality is shown to have fetched in a bona fide transaction entered into between a willing purchaser and a willing seller near about the time of the acquisition. It is not disputed that the transaction represented by Exhibit R-19 was a few months prior to the notification Under Section 4 that it was a bona fide transaction and that it was entered into between a willing purchaser and a willing seller. The land

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comprised in the sale deed is II grounds and was sold at Rs. 1,961 per ground. The land covered by Exhibit R- 27 was also sold before the notification but after the land comprised in Exhibit R-19 was sold. It is true that this land was sold at Rs. 1,096 per ground. This, however, is apparently because of two circumstances. One is that betterment levy at Rs. 500 per ground had to be paid by the vendee and the other that the land comprised in it is very much more extensive, that is about 93 grounds or so. Whatever that may be, it seems to us to be only fair that where sale deeds pertaining to different transactions are relied on behalf of the Government, that representing the highest value should be preferred to the rest unless there are strong circumstances justifying a different course. In any case we see no reason why an average of two sale deeds should have been taken in this case.”

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(Emphasis Supplied)

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18 . Admittedly, as discussed above, the suit land i.e. Plot No.99 appertaining to Khata No.7 of Mouza Gopigadia, as per the ROR, though is of Kissam Taila-II, but the Kissam of the said land was physically changed to pond (Gadia) and it is adjacent to N.H. 200. Even if it is accepted that the Kissam of land remains as Taila-II and it was never changed to pond by excavating the said plot, this Court is of the view that the said plot, being bigger in size, because of its locational advantage, being adjacent to N.H., its future prospect is much better than a small patch of land of the same Mauza. A Taila-II Kissam of land, adjacent to N.H.200, has more commercial potentiality and should fetch

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more price than a Sarada-III Kissam of land, being adjacent to

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National Highway, as the said kissam of land may not require earth filling to use the same for homestead or commercial purpose.

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19. As is revealed from Ext.A, read with Ext.6 (Village Map), Plot No.46 appertaining to Khata No.25/39 of Kissam Sarada-III measuring an area of Acre 0.64, adjacent to N.H, was sold vide RSD No.1240 dated 29.10.2008 @ Rs.2,67,437/- per acre. Though Kissam of land vide RSD dated 02.12.2009, marked as Ext.4, was sold @ Rs.4,40,000/- per acre, but the said land is situated in a different village namely, Altuma.

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In view of the evidence on record, the Appellant/ Petitioner should have been compensated by giving more compensation in terms of Ext. A. However, it is the specific case of the Appellant that she physically converted the kissam of the said land to pond by digging the said plot for the purpose of pisciculture. Ext.5 also proves that only the pond embankment from the other side of the pond, which is not adjacent to N.H., was acquired for the purpose of the said project. Major remaining portion of the suit land of the Appellant, measuring an area of Acre 01.40, adjacent to the N.H., is available to be utilized for the purpose of the pisciculture and other purposes. Hence, this Court is of the view that the Rs.1,75,000/- per acre

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would be just and proper compensation to be awarded in favour of the Appellant. Apart from the same, applying the rule of annual increase for grant of higher compensation, the RSD marked as Ext.3, being dated 29.10.2008, this Court is of the view that the Appellant is also entitled to enhanced compensation @10% increase per year for the interregnum period i.e. from 29.10.2008 till the date of section 4(1) notification i.e. dated 10.05.2010, was made. Accordingly, the Appellant be paid enhanced compensation @ 2,00,000/- per acre (rounded off) with other statutory dues, in terms of the Act, 1894.

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20. In view of the above direction , it is made clear that the Appellant- Petitioner shall not be entitled to any additional compensation towards alleged damage caused to the embankment of the pond, as ordered by the referral Court. 21. Accordingly, impugned judgment dated 31.07.2013, passed in L.A. Misc. Case No.41 of 2012, is modified to the extent that the Respondent shall re-determine the compensation in terms of the observation made above and calculate the revised additional compensation in favour of the Appellant/ Petitioner for the acquired land and release the same with all statutory dues payable under the Act, 1894 within a period of three

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months from the date of production of the certified copy of this

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judgment.

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22. The Appeal stands allowed to the extent, as indicated

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above and is disposed of accordingly.

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