Allowed

Biswanath Gond v. Spl.Land Aq.Officer

Orissa HC28 Aug 2024LAA/43/2008

Case brief

AI extract

What is this about?

Land acquisition appeal seeking enhancement of compensation for acquired agricultural land of different kissam categories. The High Court held compensation cannot be capped at the claim amount, directed re-determination at Rs.60,000 per acre for Bahal land, and remitted Atta/Mal land valuation with 16 multiplier.

What did the court decide?

Impugned judgment set aside; referral Court directed to re-determine compensation at Rs.60,000/acre for Bahal kissam plots and apply 16 multiplier capitalization for Atta/Mal kissam, permitting additi

Biswanath Gond Vs Spl.Land Aq.Officer — Land Acquisition | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA, CUTTACK

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LAA No.43 of 2008

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Biswanath Gond ….... Appellant -VersusSpecial L.A. Officer, Lanjigarh Road-Junagarh Rail Link Project, Bhawanipatna & anr. ....... Respondents For Appellant : Mr. S. Mohanty Advocate For Respondent No.1 : Mr.B. Panigrahi ASC For Respondent No. 2 : Mr. J. Nayak, CGC ...................

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CORAM: JUSTICE SANJAY KUMAR MISHRA

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Date of Hearing: 09.07.2024 Date of Judgment: 28.08.2024 _____________________________________________________________

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S.K. MISHRA, J.

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1. This appeal has been preferred against the judgment dated 04.02.2008 passed in M.J.C No.188 of 1997, arising out of L.A. Case No.15 of 1994, passed by the Civil Judge (Senior Division) Bhawanipatna, vide which the Court

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below partly allowed the claim of the Appellant (Petitioner in the Court below) on contest against the Respondents (Opposite Parties in the Court below) but rejected the prayer of the Appellant for enhancement of compensation.

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2. The brief facts, which lead to the filing of the case, are that an area of Ac.6.57dec.under plot nos. 501, 514, 515, 520, 535, 512, 511, 502, 516, 523 and 534 appertaining to Khata No.54 of Village- Salebhata belonging to the Appellant were acquired by the Government for the purpose of construction of Lanjigarh Road- Junagarh Rail Link Project vide Notification No. 12692/R dated 17.03.1994 and declaration no. 14861/R dated 17.04.1995 in terms of Section 4(1) of the Land Acquisition Act, 1894, shortly, “the L.A. Act”. After inquiry, the Special Land Acquisition Officer (LAO) awarded an amount of Rs.1,15,747/towards compensation for the acquired land, which the Appellant received under protest. Thereafter, in a reference under Section 18 of the L.A. Act, which was registered as M.J.C No.188 of 1997, the referral Court, vide order dated 04.02.2008, partly allowed the claim of the Appellant on contest against the Respondents while rejecting the prayer for

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enhancement of compensation to the tune of Rs. 8,25,000/-. Hence, this appeal.

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3. After giving opportunities to the parties to have their say and lead evidence, the Court below framed the following issues:-

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(i) What is the market value of the case land?

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(ii) Whether the petition of the claimant is maintainable?

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4. The said issues were dealt with and answered by

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coming to a conclusion that, the petition filed by the

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Appellant (Claimant-Petitioner in the Court below) is partly allowed and the Appellant is entitled to get Rs.30,000/- per acre for the acquired land appertaining to plot nos. 501,514,515,520 and 535 along with other statutory benefits so also entitled to receive Rs.39,758/- for the plot nos. 511,502,516,523,534 and 512. In addition to the same, it was ordered that the Appellant is entitled to receive interest at the rate of 12% per annum on the differential market value from the date of publication of the notice under section 4 (1) of the L.A. Act till the date of award or the date of taking over possession of the acquired land, whichever is earlier, and solatium at the rate of 30%, so also interest at the rate of 9%

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per annum from the date of taking over possession for one year and at the rate of 15% per annum from the date of one year till the amount is actually paid.

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5. This Appeal has been preferred on the ground that, the impugned judgment is illegal and contrary to law and the compensation amount is inadequate as the Court below awarded the compensation without considering the fair and equitable market value and without computing the potentiality of the land so also without following the norms, as prescribed under the L.A. Act & Rules. The Court below determined the value of the land basing upon the sales statistics as furnished by the Sub-Registrar, which should not be taken into consideration as the Court below failed to determine the value by adopting capitalization method in absence of any other method.

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Further, as per Ext. C i.e the report prepared in Form No. 9 (A), in respect of fresh inquiry of the trees in the acquired land by the Amin and the Revenue Inspector and the Forest Officials, there is no facility of irrigation to the acquired land. However, Ext.1 i.e. copy of yield rate of different crops for 1993-1995, clearly shows that the acquired land is a

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double crop land and the yield rate of both Kharif and Rabi crops are quite high in the acquired lands, which should have been taken into consideration by the Court below while passing the impugned order. Further, the adjacent land owner was also paid a sum of Rs.60,000/- per acre for similarly situated land in M.J.C No. 183 of 1997. Thus, not awarding of compensation at the same rate in respect of the Appellant is not proper in the eye of law.

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Moreover, the Court below failed to take into

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consideration the facts that the Appellant was getting net profit of Rs. 20,000/- per annum by growing some fruit bearing trees on plot nos. 502,516,523 & 534 so also getting a net profit of Rs.5000/- per annum by cultivating vegetables on plot nos. 512 & 514. Similarly, the Appellant was getting a net profit of Rs. 10,000/- by growing trees like sessum, saguan, Eucalyptus in plot nos. 511 & 512. In addition to the same, the Appellant was also getting a net profit of Rs.40,000/- per annum from the rest of the plots by raising double crop paddy. Hence, the compensation amount should be enhanced to Rs.8, 25,000/-

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6. Though several grounds have been urged in the

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Memorandum of Appeal, learned Counsel for the Appellant, giving more emphasis to Ground Nos. B & J to L submitted that the impugned judgment dated 04.02.2008 passed in MJC No.188 of 1997, being perverse, deserves interference.

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7. Learned Counsel for the Appellant, drawing attention of this Court to the relevant portion of para-5, at internal page 9 of the judgment, submitted that though the Court below came to a conclusion from the evidence on record that market value of Bahal kissam of lands appertaining to plot nos.501, 514,515,520 and 535 could be more than Rs.60,000/per acre, but confined the enhanced compensation of the said kissam of lands appertaining to the aforesaid plots to Rs.30,000/- per acre on the ground that the Appellant (Petitioner before the Court below) has only advanced the claim of Rs.30,000/- per acre for the said kissam of land.

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8. Mr. Mohanty, learned Counsel for the Appellant, further drawing attention of this Court to the Para-6 of the impugned judgment, submitted that though the present Appellant-Petitioner cited the judgment of this Court reported

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in 2001 (II) OLR 414 praying to adopt 15 multiplier method so far as Mal and Atta kissam of land, but the Court below failed to appreciate the ratio decided by this Court in the said judgment and erroneously came to a conclusion that the market value of the land changes with changing times under varying situations and the Appellant-Petitioner is entitled to Rs.30,000/- only per acre of the suit land appertaining to plot no.501, 514, 515, 520 and 535 along with other statutory benefits and entitled to receive Rs.39,758/- for the plot nos.511,502,516,523, 534 and 512 along with other statutory benefits.

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9. To substantiate his submissions, Learned Counsel for the Appellant relied on the judgment of the Supreme Court in Ashok Kumar and Ors Vs. State of Haryana reported in (2016) 4 SCC 544 so also judgment of this Court in State of Orissa Vs. Madhabi Pradhan and Ors. Passed in L.A.A. No.

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18 of 2011, reported in MANU/OR/0313/2024.

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10. In response to the said submissions made by the learned Counsel for the Appellant, learned Counsel for the State-Respondent submitted that, despite the claim of the Appellant to get higher compensation on the fruit bearing

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trees, since there is no mention of the existence of the fruit bearing trees in Ext. C-2 i.e. the Inquiry Report in Form No.9A by the Amin and Revenue Inspector and Forester, in absence of convincing evidence to hold that the trees are actually in existence on the acquired land so also the claim of the Appellant as to his getting of Rs.20,000/- per annum from the fruit bearing trees is absurd and unacceptable. The Court below has rightly not taken into consideration the said claim of the Appellant in absence of any clinching evidence to substantiate the said claim.

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11. Learned Counsel for the State–Respondent further submitted that the Petition for enhancement of compensation was submitted by the Appellant on 18.09.1996, which was submitted before the Court below along with the reference Petition on 31.07.1997. Though the State Opposite Party raised the point regarding limitation, the impugned order does not contain any finding regarding the objection raised on the ground of limitation.

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12. In view of the submissions made by the learned Counsel for the parties, it would be apt to extract below the relevant portions from para 5 & 6 of the impugned judgment:-

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“5. After resorting to the twelve multiplier method , the market value of one acre of Mal and Atta land comes to Rs.39,758/-which the petitioner-claimant is entitled to receive for the Mal land appertaining to plot no. 511 and the Atta land appertaining to plot no.502,516,523 and 534, the market value of Bahal lands appertaining to plot no.501,514,515,520 and 535 could be more than Rs.60,000/- per acre. But the Claimant-Petitioner has only advanced the claim of Rs.30,000/- per acre for which this Court accepts the same as the proper compensation to which the Claimant- Petitioner is entitled for the Bahal lands appertaining to the plots. The compensation paid on the count trees stands undisturbed as there is no adequate evidence before this Court to give the proper valuation for the trees.”

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“6. The Hon'ble High Court adopted fifteen multiplier method in view of the earlier pronouncement of the Hon'ble Supreme Court . It cannot be brushed aside that the market value of the land changes with changing times under varying situations. In view of dissimil circumstances the above stated pronouncement of the Hon'ble High Court does not go in favour of the Claimant-Petitioner. Though the Claimant-Petitioner has referred to the earlier judgement of this Court in M.J.C. No. 183/1997, it can be briefly stated that the circumstances of the said case are different from the facts of the case in hand and as such the earlier judgment passed by this Court cannot be safely relied upon for doing justice to either party.”

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(Emphasis Supplied)

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13. It is ascertained from the impugned judgment that

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the kissam of acquired lands were Bahal, Berna, Mal and Atta

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which are of categories of agricultural lands. The Court below, after resorting to twelve multiplier method for assessing the market value of the acquired land, held that the Appellant is entitled to receive Rs.39,758/- for one acre of Mal kissam of land appertaining to Plot no.511 and Atta kissam of land appertaining to Plot nos. 502,516,523 and 534. Though the market value of Bahal kissam of lands appertaining to Plot nos.501,514,515,520 and 535 held to be more than Rs.60,000/- per acre, since the Appellant advanced his prayer of compensation @ Rs.30,000/- per acre, the Court below accepted the same as proper compensation for the Bahal kissam of lands. However, as there is no adequate evidence as to proper valuation for the trees grown by the Appellant on the acquired lands, the compensation paid on the trees stood undisturbed.

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14. As is revealed from the relevant portion of the impugned judgment, as has been extracted above, admittedly, the Court below came to a conclusion that the market value of Bahal kissam of lands, appertaining to plot nos.501, 514, 515,520 and 535 could be more than Rs.60,000/- per acre. However, the referral Court confined the claim of the

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Appellant-Petitioner to only Rs.30,000/- per acre for the said kissam of land on the ground that the Appellant-Petitioner advanced a claim of Rs.30,000/- per acre for the said kissam of land.

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15. As held by the Supreme Court in Ashok Kumar

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(supra), as per the amended provision in the L.A. Act, which puts a cap on the minimum; compensation cannot be less than what was awarded by the Land Acquisition Collector. The cap on maximum having been expressly omitted, and the cap that is put, is only on minimum, it is clear that the amount of compensation that a Court can award is no longer restricted to the amount claimed by the Applicant. It was further held by the Supreme Court that it is the duty of the Court to award just and fair compensation taking into consideration the true market value and other relevant factors, irrespective of the claim made by the owner.

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Paragraph Nos.6 & 7 of the said judgment in Ashok Kumar (supra), being relevant, are reproduced below:-

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“6. Prior to amendment Act 68 of 1984, the amount of compensation that could be awarded by the Court was limited to the amount claimed by the applicant. Section 25 read as under –

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"Section 25. Rules as to amount of compensation –

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(1) When the applicant has made a claim to compensation, pursuant to any notice given under Section 9, the amount awarded to him by the court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under Section 11.

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(2) When the applicant has refused to make such claim or has omitted without sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded by the court shall in no case exceed the amount awarded by the Collector.

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(3) When the applicant has omitted for a sufficient (to be allowed by the Judge) to make such claim, the amount awarded to him by the court shall not be less than, and may exceed, the amount awarded by the Collector."

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The amended Section 25 reads as under:

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"Section 25. Amount of compensation awarded by Court not to be lower than the amount awarded by the Collector- The amount of compensation awarded by the Court shall not be less than the amount awarded by the Collector under Section 11." The amendment has come into effect on 24.09.1984.

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7. The pre-amended provision put a cap on the maximum; the compensation by court should not be beyond the amount claimed. The amendment in 1984, on the contrary, put a cap on the minimum; compensation cannot be less than what was awarded by the Land Acquisition Collector. The cap on maximum having been expressly omitted, and the cap that is put is only on minimum, it is clear that amount of compensation that a court can award is no longer restricted to the amount claimed by the applicant. It is the duty of the Court to award just and fair

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compensation taking into consideration the true market value and other relevant factors, irrespective of the claim made by the owner.”

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(Emphasis Supplied)

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16. So far as the multiplier to be applied in land

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acquisition cases, admittedly, though the Appellant-Petitioner relied on the judgment of this Court reported in 2001 (II) OLR 414 to substantiate his claim that he is entitled for compensation for Atta & Mal kissam of land by adopting 15 Multiplier, but the Court below distinguished the said judgment of this Court on the plea that in view of the dissimile circumstances in the said case, it doesn’t go in favour of the Appellant-Petitioner. That apart, even though the Appellant-Petitioner relied upon the earlier judgment of the said Court in MJC No.183 of 1997 to claim parity with regard to compensation, the Court below did not accept the said stand of the Appellant-Petitioner on the ground that circumstances of the said case are different from the facts of the present case and earlier judgment passed by the same Court cannot be safely relied upon for doing justice to either party.

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17. So far as applicability of multiplier, the learned

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Counsel for the Appellant, relying on the judgment of this Court in Madhabi Pradhan (supra), submitted that in view of the circular no.LA(C)-5/2003 (Misc) 21963/R., Bhubaneswar, dated 30.04.2003 of the Government of Orissa, Revenue Department, which was taken note of by this Court in Madhabi Pradhan (supra), his Client is entitled to get compensation for Atta and Mal kissam of land applying 16 Multiplier in absence of sales statistics regarding such kissam of land. Despite citing the judgment of this Court, the Court below erroneously and illegally resorted to 12 Multiplier method to determine the market value of 1 acre of Mal and Atta kissam of land to be Rs.39,758/-.

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18. This Court in Madhabi Pradhan (supra), taking note of the said Circular of the State Government so also Division Bench judgment of this Court reported in AIR 1991 Ori (271) (Land Acquisition Zone Officer vs. Damberudhar Pradhan and others) so also judgment of the Supreme Court reported in (2000) 6 SCC 326 (Executive Director vs. Sarat Chandra Bisoi & another) held that where there are no sales statistics of comparable land the value has to be found

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out by adopting some other way. One of the methods is to find

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out the annual income of the land which the owner has been deriving or is expected to derive from the use of the land and capitalize the same by adopting a multiplier. Hence, in view of the Circular of the State Government dated 30.04.2003, so also the judgment rendered in Madhabi Pradhan (supra), this Court is of the view that the Court below ought to have applied 16 multiplier for determining the market price of Atta and Mal kissam of land, instead of applying 12 Multiplier.

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19. In the above circumstances, the impugned judgment passed in MJC No.188 of 1997 is set aside and quashed. The matter is remitted back to the referral Court to re-determine the market value of the lands of the AppellantPetitioner @ Rs.60,000/- only per acre so far as Bahal kissam of land appertaining to Plot Nos.501, 514, 515, 520 and 535, to be paid along with other statutory benefits.

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Similarly, the Court below shall re-determine the compensation so far as Atta and Mal kissam of land by applying the capitalization method by adopting 16 Multiplier, as has been held by this Court in Madhabi Pradhan (supra).

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20. It is made clear that for re-determining the

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compensation for Atta and Mal kissam of land, the referral Court, on remand, shall allow the Appellants/Petitioner to adduce additional evidence, if so required, and re-determine and re-calculate the compensation in terms of the observations made above and conclude the said proceeding within a period of four months from the date of production of the certified copy of this Judgement.

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21. With the said observation and direction, 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, 28^th August, 2024 / Banita

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Signature Not Verified

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Digitally Signed Signed by: BANITA PRIYADARSHINI PALEIDesignation: SR. STENOGRAPHER Page 16 of 16 Reason: AUTHENTICATION Location: HIGH COURT OF ORISSA, C UTT ACK Date: 29-Aug-2024 16:10:51

Biswanath Gond v. Spl.Land Aq.Officer

Case brief

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Biswanath Gond v. Spl.Land Aq.Officer

Case brief

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