Union of India Vs Rajkishore Sahoo

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`IN THE HIGH COURT OF ORISSA, CUTTACK

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L.A.A. No.84 of 2018

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Union of India ....... Appellant -Versus-

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Rajkishore Sahoo & others ....... Respondents

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For Appellant : Mr. D. R. Bhokta, Central Govt. Counsel For Respondent No.1 : Mr. M. Acharya, Advocate For Respondent Nos.2 & 3 : Mr. B. Panigrahi, Addl. Sanding Counsel

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CORAM: JUSTICE SANJAY KUMAR MISHRA

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-------------------------------------------------------------------------------------Date of Hearing: 31.07.2024 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 13.02.2018 passed in L.A. Misc. Case No.69 of 2013 by the Senior Civil Judge, Nayagarh, vide which the Court below allowed the claim of the Claimant (Respondent No.1 in the present Appeal) and ordered for higher compensation.

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Page 1 of 13

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2. The brief facts, which led to filing of the Appeal, are that an area of Ac.0.88 decimals in Plot No.871, area of Ac.013 decimals, Plot No.897, area of Ac.006 decimals, Plot No.757/2374, area of Ac.0.22 decimals, Plot No.756, area of Ac.0.31 decimals & Plot No.846/1305, area of Ac.0.16 decimals under Khata No. 285/265 of Kisam Sarad-II and Sarad dofasal-II belonging to the Respondent No.1/Claimant, situated at VillageLaxmiprasad, P.S/Dist- Nayagarh, were acquired for the purpose of Khurda Road-Bolangir Rail Link Project in pursuance of notification under Section 4(1) dated 13.03.2012. The Land Acquisition Officer, shortly, hereinafter ‘LAO’, assessed the compensation in total at Rs.8,85,796/- for an area of Ac.0.88 decimals, which the Claimant/Respondent No.1 received under protest. Thereafter, in a reference under Section 18 of the Land Acquisition Act, 1894, shortly, ‘the Act’, which was registered as L.A Misc. Case No.69 of 2013, the referral Court, vide order dated 13.02.2018 allowed the claim of the Claimant so also ordered for higher compensation @ Rs.15,000/- per decimal for acquisition of his land and interest, solatium and other benefits as per statute. Hence, this Appeal.

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Page 2 of 13

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3. As is revealed from the L.C.R, 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 fair market value of the acquired case land at the time of publication of acquisition under Section 4(1) of the Act?

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ii) To what relief the Claimant/Petitioner is entitled for?

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4. The said issues were dealt with and answered by coming to a conclusion that the Claimant/Respondent No.1 is entitled to get compensation @ Rs.15,000/- per decimal of his land and interest, solatium and other benefits, as per the statute.

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5. The Appeal has been preferred basically on the grounds that, the referral Court has misdirected himself in appreciating the materials available on record and wrongly assessed the market value of the acquired land on higher side. Further, the Court below has exceeded its jurisdiction without examining the validity of the award determined by the LAO, as per the guidelines stipulated under section 23 and 24 of the Act. Further, the conclusion arrived by the Court below, being based upon untrustworthy statements and interested witnesses are

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against the weight of evidence on record and legally not

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Page 3 of 13

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sustainable. The reason being, though the burden of proving that the acquired lands are capable of fetching higher compensation by adducing cogent and acceptable evidence is always on the claimant so also it is the duty of the Court to evaluate the evidence on record. No rebuttal evidence was adduced by the Petitioner-Claimant to assess the market value of the land. Moreover, the Court below has grossly erred in discarding the sale statistics and working sheet, which were exhibited by both the Appellant/Opposite Parties and duly proved by adducing oral evidence.

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6. A further ground has been urged in the Appeal that,

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since there is no evidence on record showing that the lands involved in L.A. Misc Case No.69 of 2013 are of similar Kissam to the land involved in the present case, the reassessment of the market value of the acquired lands, relying upon the judgment of the aforesaid case, is not sustainable in the eye of law and liable to be set aside. Further, as the Court below has committed wrong in making the valuation of the acquired land ignoring the fact that, the acquired land is neither fit for homestead nor for agricultural purpose, as categorically mentioned in the written statement, the amount of compensation being excessive, is bad, illegal and liable to be set aside.

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7 . Reiterating the grounds agitated in the Memorandum of Appeal, Mr. Bhokta, learned CGC submitted that the Court below ought to have examined the validity of the award determined by the LAO within the parameter and guidelines stipulated under sections 23 & 24 of the Act. Instead of doing so, the Court below has clearly exceeded its jurisdiction, thereby enhanced the compensation to Rs.15,000/- per decimal in favour of the Respondent No.1 without assigning sufficient reasons for doing so. Mr. Bhokta, further submitted that the market value of the acquired agricultural land @ Rs. 15,000/-per decimal has been fixed on the basis of untrustworthy statements so also interested witnesses and legally not sustainable. Further, the Court below has grossly erred in discarding the sale statistics and worksheet exhibited from the side of the present Appellant/ Opposite Parties before the Court below, which are marked as Exts.C & D, respectively. Mr. Bhokta, further submitted that though there is no evidence on record to show that the land involved in L.A. Misc. Case No.69 of 2013 are of similar Kisam than that of the land involved in the present case, the reassessment of market value of the said lands relying on the judgment of L.A. Misc. Case No.69 of 2013 is unsustainable in the eye of law and liable to be set aside.

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Page 5 of 13

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8. Per contra, Mr. Acharya, learned Counsel for the Private Respondent No.1, drawing attention of this Court to Paragraph No.10 of the impugned judgment, submitted that though the claim of the present Respondent No.1 was to enhance the compensation to Rs.30,000/- per decimal, based on the consideration amount vide RSD marked as Ext.2, which is the certified copy of RSD dated 21.10.2011 of Mouza Laxmi Prasad, the referral Court did not accept the said consideration amount to be the market value for reassessing the compensation to be paid to his client and relied on the RSD, which was marked as Ext.1, which clearly demonstrates that the Kisam of the land was Sarada-II of the same Mouza i.e. mouza Laxmi Prasad, which was sold for Rs.1,12,500/- @ Rs.15,000/- per decimal. That apart, as per the settled position of law, though the said RSD, marked as Ext.1, is dated 13.12.2010 and the notification for acquisition of the land of the present Respondent No.1 was dated 13.03.2012, the referral Court should have further enhanced the compensation by 15% over and above the consideration amount vide RSD dated 13.12.2010 marked as Ext.1 for the interregnum period.

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9. Mr. Acharya, learned Counsel further submitted that the Respondent No.1/Petitioner before the Court below,

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examined three witnesses including himself to be P.W. No.3. All the PWs in their Affidavit evidence clearly stated that the acquired lands are situated in Mouza Laxmi Prasad and just adjacent to residential houses so also State Highway and ½ (half) KM away from N.A.C., Nayagarh town and Office of the Executive Engineer, R.W.S.S., Fire Station, Petrol Pump, Holy Family English Medium School and other residences so also market and Hat are situated just 50 to 100 meters away from the acquired land. There are also High School, M.E. School, Primary School and Post Office of the village Barapalli and electricity facilities and telephone facilities are also available and the sale rate per decimal of similarly situated land before the acquisition was minimum Rs.30,000/- per decimal in Mouza Laxmiprasad and Barapalli, which are sold for homestead purpose and the said evidences of the P.Ws. remain un-demolished during their crossexamination. Mr. Acharya further submitted that present Respondent No.1 (PW No.3) not only reiterated the said facts but also exhibited RSD dated 21.10.2011 as Ext.2, which was marked so without any objection. Hence, because of locational advantage of the suit plots, the referral Court ought to have enhanced the compensation to more than Rs.15,000/- per decimal. However, by applying guesstimate, it was reasonably

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Page 7 of 13

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enhanced to Rs.15,000/- per decimal. That apart, one Mr. Baikuntha Nath Mishra, who was working then as Amin, East Cost Railways, Khordha Road Bolangir Rail Project, was examined as O.P.W. No.1, who during his cross-examination admitted that though the concerned A.D.M. had given the bench mark valuation of the concerned locality after obtaining the same from the Sub-Registrar, but the said letter had not been filed in the said case.

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10. Mr. Acharya further submitted that the Court below, relying on the judgment of the Supreme Court reported in AIR 1984 Supreme Court 774 so also judgment of this Court reported in 2014 (Supp. II) OLR 144 and the documentary as well as oral evidence on record, rightly enhanced the compensation @ Rs.15,000/- per decimal for acquiring the lands of his client. Hence, there being no infirmity in the impugned judgment passed in L.A. Misc. Case No.69 of 2013, the present Appeal deserves to be dismissed.

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11. In view of the said submissions made by the learned Counsel for the parties, it would be apt to reproduce below the relevant portion from Paragraph No.10 of the impugned judgment for ready reference:

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“10. While ascertaining determination of compensation, this court to keep broad principles in mind as enumerated

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Page 8 of 13

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by Hon'ble Apex Court in the case of Special L.A.O Avangera vs. P. Veerabhabarappa , reported in AIR 1984 SC 774, Hon'ble Apex Court observed;

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"The function of the Court in awarding compensation under the Act is to ascertain the market value of the land at the date of the notification u/s.4(1) of the Act and the methods of valuation may be :1) opinion of experts, 2) the price paid within a reasonable time in bonafide transaction of purchase or sale of the land acquired and possessing similar advantages, and 3) a number of year's purchase of the actual or immediately prospective profits of the land

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acquired."

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Here the claimant/petitioner does not tender evidence of any expert. There is also no evidence to facilitate computation of the market value of the case land by capitalizing method. So the only method left for computing the market value of the case land is through comparable sales or other instances . In the instant case, the claimant tender evidence of comparable sale instance. In the case at hand, the opposite parties failed to produce any authenticated document supporting the market value of the land fixed as discussed above. Thus, in the circumstances, while there is no direct evidence to ascertain the market value of the acquired land, the only course available is to ascertain it by guess estimate. Taking into consideration the available oral evidence and documents and submission of learned counsels for parties, it is clearly found that the market value of

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the acquired land was higher than the value given to the claimant . Although Exts-1 and 2 are filed but no village map nor evidences were adduced from side of petitioner regarding the exact location of the land under Exts.1 & 2 and of the acquired land, but the lands under Ext-1 having kissam Sarad-II under Laxmiprasad Mouza and the acquired land being of kissam Sarad Dofasali -II as well as Sarad-II under Laxmiprasad Mouza. The L.A.O has estimated the value of the acquired land i.e. Ac. 0.88 decimals at Rs. 6,44,542/-, as such LAO has assessed the value at Rs 7,324/- per decimal . In my considered view, the guess work and in the back drop of sale instances and oral evidence of petitioner regarding location of property would be the proper approach for the purpose of ascertaining market value of the land in question. In my considered opinion, for the discussions as made above, the claimant is entitled for higher market value. But as observed by Hon'ble Court in 2014 (Supp-II) OLR-144 at para 30 that "compensation should neither be a bonanza for the claimant nor it should give a feeling in the mind of the claimant that an act of pittance is shown to them". Right to property is not only a constitutional right, but also a human right and no doubt land can be acquired by the State for public purpose, but it is the duty of the State to see that the land losers are awarded with proper compensation. Thus, considering the locational advantage of acquired land in the said mouza, I am of the opinion that the claimant is entitled for higher compensation @ Rs.15,000/- per decimal towards the valuation of the acquired land. Hence it is ordered.”

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(Emphasis Supplied)

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Page 10 of 13

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12 . As is revealed from the impugned judgment so also LCR, the Claimant/Respondent in the present Appeal, examined three witnesses including himself as P.W.3 and also produced two documents in support of his claim, which were marked as Ext.1 and Ext.2. On the other hand, the Opposite Parties in the Court below examined one witness on their behalf and exhibited four documents which were marked as Exts.A to D.

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13. On perusal of the impugned judgment so also LCR, it is ascertained that, Ext.1 i.e. RSD dated 13.12.2010 shows that Ac.0.07½ decimals of lands of Kisam Sarad-II of MouzaLaxmiprasad were sold for Rs.1,12,500/- (Rs.15,000/- per decimal) so also Ext.2 i.e. RSD dated 21.10.2011, shows that Ac.0.03 decimals of land of Mouza-Laxmiprasad were sold for Rs.90,000/-(Rs.30,000/- per decimal). However, the Kisam of the acquired lands could not be ascertained from recital of Ext.2. It is further ascertained that, while determining the compensation amount, the Court below has relied on the Judgment of the Supreme Court in Special L.A.O Avangera Vs. P. Veerabhabarappa , reported in AIR 1984 SC 774.

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14. As is revealed from the impugned judgment, since there is no direct evidence to ascertain the market value of the acquired land, the only recourse available to the Court below

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was to ascertain it by guess estimate. Further, there is neither village map nor evidences adduced by the Claimant/Respondent No.1 regarding the exact location of the lands under Exts.1 and 2 so also of the acquired land. Moreover, the Kissam of the land under Ext.1 is Sarad-II under Laxmiprasad Mouza, whereas the Kisam of the Acquired land being Sarad Dofasali-II as well as Sarad-II under Laxmiprasad Mouza, are of better Kisam. But the LAO has estimated the value of the acquired land of Ac 0.88 decimals at Rs.6,44,542/- @ Rs.7,324/- per decimal. Hence, this Court is of the view that sale instances as well as oral evidence on record regarding locational advantage of the property would be the proper approach for the purpose of ascertaining the market value of the acquired land.

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15. As held by the Supreme Court in Bhule Ram Vs. Union of India and another reported in 2014 AIAR (Civil) 434 SC, the locational advantage of the property acquired by the State could be one of the decisive factors for the purpose of ascertaining the market value of the land. Admittedly, almost all P.Ws. have clearly deposed regarding the locational advantage . As held in Bhule Ram (supra), the claimant has onus to prove that he is entitled to receive higher compensation. It was also held that the process of guesstimate may be adopted for limited purpose and

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the market value of the acquired land is also to be determined taking into consideration the location/geographical situation, importance, existing use of the land, prospects and purposes to which the said land may be used, condition, advantages/disadvantages and potentiality in foreseeable future. 16. In view of the evidence on record so also reasons assigned by the referral Court to enhance the compensation @ Rs.15,000/- per decimal towards the valuation of the acquired land to be just & proper and the settled position of law, this Court is of the view that there is no infirmity or illegality in the impugned Judgment passed in L.A. Misc. Case No.69 of 2013.

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17. Accordingly, the Appeal preferred by the Union of India stands dismissed.

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18. In view of the dismissal of the Appeal, the Appellant is directed to implement the Judgment dated 13.02.2018 passed in L.A. Misc. Case No.69 of 2013 at the earliest, preferably within a period of three months from the date of production of the certified copy of this judgment.

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….…..….……………

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Signature Not Verified

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S.K. Mishra, J.

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Digitally Signed Signed by: MONALISA SWAIN Orissa High Court, Cuttack. Reason: Authentication Location: High Court of Odisha Dated, 28^th A ugu st, 2024/ Monalisa Date: 29-Aug-2024 18:28:00

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Union of India v. Rajkishore Sahoo

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Union of India v. Rajkishore Sahoo

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