Allowed

Kanchan Bijay Tank v. State

Orissa HC10 Sept 2024LAA/7/2011

Case brief

AI extract

What is this about?

Appeal against a land acquisition reference award fixing compensation at Rs.12,50,000 per acre. Holding the referral court's valuation contrary to its own findings on sale evidence, the High Court quashed the award and remitted for redetermination at enhanced rates plus annual increase.

What did the court decide?

Impugned award set aside; matter remitted to referral court to redetermine compensation @ Rs.16,00,000/acre (Rs.15,00,000/acre for Rasta kissam) with 10% annual increase, and reconsider tree valuation

Kanchan Bijay Tank Vs State — Land Acquisition | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA, CUTTACK

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L.A.A. No.7 of 2011

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Smt. Kanchan Bijay Tank & others ….... Appellants -VersusState of Orissa ........ Respondent For Appellants : Mr. S. Panigrahi, 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: 16.07.2024 Date of Judgment:10.09.2024

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S.K. MISHRA, J.

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1. This Appeal has been preferred against the judgment and order dated 27.11.2010 passed by the Civil Judge (Senior Division), Champua, in L.A. Reference No.03 of 2010 for further enhancement of compensation.

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2. The brief facts, which led to the filing of this Appeal, are that land belonging to the Appellants measuring an area of A0.845 dec. appertaining to Plot No.10, A0.825 dec.

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appertaining to Plot No.12, Ac.9.033 dec. appertaining to Plot No.32, Ac.3.000 dec. appertaining to Plot No.707, Ac.1.108 dec. appertaining to Plot No.12/888 (Taila-II kissam) and an area of A0.990 dec. appertaining to Plot No.31, Ac.6.375 dec. appertaining to Plot No.35, Ac.3.758 dec. appertaining to Plot No.691 (Taila-I kissam) and an area of Ac.2.650 dec. appertaining to Plot No.11, Ac.6.213 dec., appertaining to Plot No.705, A0.235 dec. appertaining to Plot No.706 (Bagyat-II kissam) and an area of A0.390 dec. of land (Bagyat-I kissam) appertaining to Plot No.694/1171, an area of Ac.4.513 dec. of land appertaining to Plot No.33, Ac.2.070 dec. appertaining to Plot No.703 (Sarad-III kissam) and an area of Ac.2.800 dec. appertaining to Plot No.34, A0.915 dec. appertaining to Plot No.704 (Sarad-II kissam), area of A0.148 dec (Sarada-I kissam) appertaining to Plot No.702 and an area of A0.345 dec. (Rasta Kissam) appertaining to Plot No.701 (Total Ac.46.213 dec.) under Khata No.98 of Mouza-Nalda were acquired by the Land Acquisition Officer, shortly, LAO, for establishment of Industry by IDCO vide Notification No.42597 dated 29.10.2007 in terms of Section 4(1) of the Land Acquisition Act, 1894, shortly, “L.A. Act”. The LAO arbitrarily

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assessed the compensation in total at Rs.8,84,69,385/including 30% solatium and 12% interest, without

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considering the prevailing market price of the acquired land, which the Appellants received under protest. Thereafter, in a reference made under Section 18 of L.A. Act, 1894, which was registered as L.A. Reference No. 03 of 2010, the referral Court, vide order dated 27.11.2010, without appreciating the materials on record and the evidence in its proper perspective, awarded compensation of Rs. 12,50,000/- per acre. Hence, this Appeal.

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3. The Appeal has been preferred basically on the grounds that the impugned judgment is an outcome of nonapplication of mind by the Court below as it committed illegality in coming to a conclusion that the correct valuation of the land is Rs.12,50,000/-per acre, without being supported by any evidence on record.

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Similarly, Ext.3 i.e. certified copy of RSD No.156 dated 09.04.2007, coupled with evidence of P.W. No.1, though well proves that the value of the land was Rs.16,00,000/- per acre in the year 2007, while assessing the compensation amount, the Court below assessed the value of

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the land at Rs.12,50,000/- per acre. That apart, though there were 621 nos. of trees, including teak, neem and also other fruit bearing trees, the value of the trees, assessed by the LAO to be Rs.14,37,895/-, is grossly inadequate and liable to be enhanced.

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4. Learned Counsel for the Appellants submitted that

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since the RSDs relied upon by the LAO were of the year 2006 and notification under section 4 of the L.A. Act was issued on 29.10.2007, the Appellants are entitled to compensation at an enhanced rate, which should be at least 10 to 15% more per year for the said interregnum period, in terms of the decision of the Supreme Court in Radha Mudaliyar Vs. Special Tahsildar , reported in AIR 2011 SC 54.

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5. Reiterating the grounds agitated in the

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Memorandum of Appeal, learned Counsel for the Appellant further submitted that P.W.1, in para-6 of his Affidavit Evidence, categorically stated that the acquired land is adjacent to the village road having potential value so also the Petitioners converted the same to suitable homestead and agricultural land by spending huge amount. However, the Referral Court, in absence of any evidence to the contrary,

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committed illegality by coming to a conclusion that no documents were filed by the Appellants/Petitioners to substantiate such claim.

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6. It was further submitted by the learned Counsel for the Appellant that the LAO fixed the valuation of the standing trees at Rs. 14,37,895/- which was incorrectly confirmed by the referral Court indicating therein that the D.F.O., Keonjhar Division has rightly assessed the total value of different type of trees and in the absence of any other materials, the Court is not inclined to take a contrary view.

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7. To substantiate his submissions, learned Counsel for the Appellant also relied on the judgments of the Supreme Court in Ambya Kalya Mhatre (dead) through LRs. and Others Vs. State of Maharashtra, reported in (2011) 9 SCC 325, Administrator Genl. Of West Bengal Vs. Collector, Varanasi, reported in AIR 1988 SC 943 and Radha Mudaliyar (supra).

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8. Per contra, learned Counsel for the StateRespondent submitted that while assessing the land value of different kissams of land in Mouza-Nalda, the LAO has taken into consideration the RSDs in respect of different kissams of

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land of village- Nalda and the nearby village for the period from 2005 to 2007. As, on field enquiry, it was ascertained that there was no sale transaction pertaining to Village-Nalda in respect of various Kissam of lands of the Appellants, the LAO took into consideration two registered sale deeds in respect of Taila-I and Taila-II kissam of lands of the year 2006 of the nearby village and after field visit, it was found that the quality and fertility of Sarad-II, Sarad-I and Sarad-III as well as Taila-I, Taila-II and Taila-III kissam of land of that area are equal. Thus, the RSDs of Taila-I and Taila-II kissam of lands were taken into consideration by the LAO while assessing the rate showing the sale price of the said kissam of lands to be ranging from Rs.12,00,000/- to Rs.16,00,000/-.

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Learned State Counsel further submitted that the

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LAO has valued the trees at Rs.14,37,895/- based on Ext. 6 i.e. copy of the valuation sheet as well as Copy of Form-9 (A), marked as Ext.6(a), which indicates the schedule of trees and the D.F.O, Keonjhar has rightly assessed the total value of the trees standing on the acquired lands.

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9. In view of the submissions made by the learned Counsel for the parties, before dealing with the point as to

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whether the Appellants were justified to prefer this Appeal seeking further enhancement of compensation awarded in their favour, it would be apt to reproduce below the relevant

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portion from para-6 of the impugned judgment:-

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“6. “xxxx Land Acquisition officer on modalities for assessment of market value of different kissam of private land at village Nalda, it is apparent that the Land Acquisition Officer has taken due consideration of the Registered Sale Deed of the year 2005 to 2007 including field enquiry and assessed the rate of Taila-i, Taila-II, SaradI, Sarad II, Sarad-III, Bagayat I, Bagayat-II and Rasta kissam land to be 12,00,000/per acre. The contents of Ext. 3 indicates that an extent of property measuring area 0.500 dec under Khata No.139/13, apper taining to Plot Nos. 756/1186 (area 0.250 dec) and Plot No.1123/1410 (area 0.250 dec) of Gharabari-II kissam land of mouza Nalda was sold for consideration amount of Rs.8,00,000/-. The contents of Ext. 4 indicates that an extent of property measuring 0.060 dec under Khata No. 49, Plot No. 489, Kissam Taila-II of mouza Nalda was sold for consideration of Rs.1,05,600/-. Ext. 3 relates to Gharabari-II kissam of land which cannot be considered in this case as no property of Gharabari-II kissam has been acquired. Ext.4 indicates that small piece of land i. e 0.060 dec was sold for consideration amount of Rs.1,05,600/- at the value much higher than the amount granted to the petitioners. No map of the suit village has been filed by the either party. Therefore, the exact location of the property sold vide Ext. 4 cannot be ascertained. It appears that the property sold vide Ext. 4 has been valued at a higher price for interestedness. However, this shows the ascending value of landed property in the locality. The Land Acquisition Officer has considered four sale

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deeds of Mouza-Nalda from 2005 to 2007 for fixation of market value of Taila-II Kissam land. Amongst those, the Registered sale Deed of the year 2007 was at the rate of Rs.15,66,667/- per acre. Likewise the Land Acquisition Officer has also considered five numbers of Registered Sale Deeds of main village as well as adjacent villages for fixation of market value of Taila-I Kissam of land and the Registered Sale Deed relating to the year 2007 is at the rate of Rs.16,00,000/- per acre. The Land Acquisition Officer has also considered two numbers of Sale Deeds for assessment of the market price of Rasta Kissam land. One at the rate of 12,00,000/per acre and other Rs.15,00,000/- per acre relating to the year 2005. It also reveals from the said documents that the Land Acquisition Officer has made his field visit and found the quality and fertility of Taila- I , Taila- II, Sarad-I, Sarad-II, Sarad-III, Bagayat-I and Bagayat-II Kissam of land are equal. So, it can be inferred that the cost of landed property in the locality is on the ascending value. xxxx”

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(Emphasis Supplied)

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10. As it seems from the said observation made by the

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Court below, even though it accepted the price of the landed properties of the locality i.e. at Nalda, to be marginally higher as assessed by the LAO and is on the ascending value, but erroneously came to a conclusion that the Appellants/ Petitioners will be entitled to compensation for Sarad-I, Sarad-II, Taila-I, Taila-II, Bagayat-I, Bagayat-II and Rasta kissam of land @ Rs.12,50,000/- per acre.

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11. On perusal of the impugned judgment and LCR, it

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is found that though the Court below, based on the report of the LAO, held that quality and fertility of various kissam of lands, as extracted above, are same and the market value of Taila-I kissam of land relating to the year 2007 is @ Rs.16,00,000/- per acre, and the market price of Rasta kissam of land in the year was Rs.15,00,000/- per acre, contrary to its own observation and evidence on record, came to a conclusion that valuation of the suit lands would be Rs.12,50,000/- per acre for all the kissam of lands i.e. Taila-I, Taila-II, Sarad-I, Sarad-II, Bagayat-I & II and Rasta kissam of land.

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12. In Ambya Kalya Mhatre (dead) through LRs. & ors. Vs. State of Maharashtra. reported in (2011) 9 SCC 325, vide Paragraph Nos.17, 18 & 29, the Supreme Court held as follows:-

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“17. The Land Acquisition Collector is not a court. When he determines the compensation, he does not adjudicate, but merely makes an offer for the acquired land on behalf of the Government. If the landowner considers the amount offered by the Land Acquisition Collector to be inadequate and makes a request within the prescribed period, for reference to the civil court under Section 18 of the Act, the Land Acquisition Collector is bound to refer the matter to the civil court for determination of the compensation. He has no choice of refusing to make a reference, when the request is in time. Neither the act of

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making an award offering compensation nor the act of referring the matter to a civil court for determination of compensation at the request of the landowner are judicial functions, but are administrative functions.

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18. The legal position of an award by the Land Acquisition Officer vis-à-vis the proceedings in a reference to the civil court under Section 18 of the Act is explained thus by this Court in Chimanlal Hargovinddas v. Land Acquisition Officer : (SCC pp. 753-54, para 4)

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“4. The following factors must be etched on the mental screen:

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(1) A reference under Section 18 of the Land Acquisition Act is not an appeal against the award and the court cannot take into account the material relied upon by the Land Acquisition Officer in his award unless the same material is produced and proved before the court.

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(2) So also the award of the Land Acquisition Officer is not to be treated as a judgment of the trial court open or exposed to challenge before the court hearing the reference. It is merely an offer made by the Land Acquisition Officer and the material utilised by him for making his valuation cannot be utilised by the court unless produced and proved before it. It is not the function of the court to sit in appeal against the award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an appellate court.

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(3) The court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it.”

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“29. The Collector making the offer of compensation on behalf of the State is expected to be fair and reasonable . He is

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required to offer compensation based on the market value. Unfortunately, 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 market value before 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. ”

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(Emphasis Supplied)

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In Administrator Genl. of West Bengal. Vs. Collector,

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Varanasi reported in AIR 1988 SC 943, vide Paragraph No. 4, the Supreme Court held as follows:-

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“xxxx The determination of market-value of a piece of land with potentialities for urban use is an intricate exercise which calls for collection and collation of diverse economic criteria. The market-value of a piece of property, for purposes of S. 23 of the Act, is stated to be the price at which the property

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changes hands from a willing seller to a willing, but not too anxious a buyer, dealing at arm’s length. The determination of marketvalue, as one author put it, is the prediction of an economic event, viz, the price-outcome of a hypothetical sale, expressed in terms of probabilities. Prices fetched for similar lands with similar advantages and potentialities under bona fide transactions of sale at or about the time of the preliminary notification are the usual, and indeed the best, evidences of market-value. Other methods of valuation are resorted to if the evidence of sale of similar lands is not available . xxxxxx”

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(Emphasis Supplied)

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In Radha Mudaliyar Vs. Special Tahasildar (Land Acquisition) reported in AIR 2011 SC 54, vide Paragraph-12 the Supreme Court held as follows:-

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“ 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 and the land, subject-matter of the transaction, is quite similar to 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, there is a difference of nearly ten months between these two dates. The claimants would be entitled to the benefit of increase for 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

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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 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.”

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(Emphasis Supplied)

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13. In view of the discussions detailed above, so also the settled position of law, this Court is of the view that the referral Court ought to have enhanced the compensation for Sarad-I, Sarad-II, Taila-I and Taila-II, Bagayat-I and Bagayat-

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II kissam of lands @ Rs.16,00,000/-, instead of Rs.12,50,000/- per acre, in view of its own observation made in para 6 of the impugned judgment that the Land Acquisition Officer made field visit and found the quality and fertility of Taila-I, Taila-II, Sarad-I, Sarad-II, Sarad-III, Bagayat-I and Bagayat-II Kissam of land are equal and it can be inferred that the cost of landed property in the locality is on the ascending value.

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14. That apart, as held in Radha Mudaliyar (supra),

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this Court is also of the view that the referral Court failed to consider enhancement of compensation for Rasta kissam of land @ Rs.15,00,000/-, the same being the highest consideration amount of Rasta kissam of land in the year 2005. In view of the settled position of law, the referral Court also failed to take in to consideration enhancement of the said rates by applying the rule of increase of compensation for the interregnum period i.e. from 2005 to 2007, over and above the market rate of the years 2005 and 2006.

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15. In view of the observations made above, the impugned order dated 27.11.2010, passed in L.A. Reference Case No.03 of 2010, is hereby set aside and quashed. The matter is remitted back to the referral Court for redetermination of the compensation towards Sarada-I, SaradII, Taila-I and Taila-II, Bagayat-I and Bagayat-II kissam of lands @ Rs.16,00,000/- per acre and Rasta kissam of land @ Rs.15,00,000/-per acre with benefit of increase of compensation @ 10% per annum for the interregnum period for all the kissam of lands, as discussed above. The Court below shall also do well to reconsider the prayer for

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enhancement of compensation toward trees, based on Ext.6 and 6(a), as prayed by the Appellant.

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16. It is made clear that the Court below shall give opportunity to the Appellants/Petitioners to adduce further evidence for redetermination of compensation towards valuation of the trees, if so prayed, so also the StateRespondent/Opposite Parties to adduce rebuttal evidence, and conclude the said proceeding at the earliest, preferably within a period of six months from the date of production of the certified copy of this judgment. Parties are directed to cooperate with the referral Court to conclude the proceeding within the period, as observed above.

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17. Accordingly, the Appeal stands allowed and disposed of.

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…….……………………

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S.K. MISHRA, J.

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Orissa High Court, Cuttack. Dated, 10^th September, 2024 /Banita

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Signature Not Verified

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Digitally Signed

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Signed by: BANITA PRIYADARSHINI PALEI Designation: SR. STENOGRAPHER Reason: AUTHENTICATION Location: HIGH COURT OF ORISSA, C UTT ACK Date: 10-Sep-2024 16:48:58

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Kanchan Bijay Tank v. State

Case brief

What is this about?

What did the court decide?

Kanchan Bijay Tank v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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