State Vs Mandardhar Nayak

Case No.3 of 2005 on the ground that the same is contrary to the parameters and mandatory guidelines stipulated under Section 23 and 24 of the Land Acquisition Act, 1894 (shortly, the Act, 1894).

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2. The factual matrix of this Appeal is that the present Respondent (Claimant/Petitioner before the Court below) was the owner of acre 0.04 decimal of Plot No.87 under khata No.129 and Plot No.95 under Khata No.279/33, Mouza Kaiamisri Jayantapur, PS: Salipur, Dist-Cuttack. The Respondent had a residential house on the said plot. The scheduled lands were acquired on 23.06.1997 and total compensation amount of Rs.34,052/- was paid to the Respondent, who received the same on protest and approached the Collector to make a reference under Section 18 of the Act, 1894 to the competent Court for determination of compensation amount.

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The application being referred, the Court below, after taking into consideration the pleadings of the parties so also evidence on record, enhanced the compensation to Rs.25,000/per decimal so far as valuation of land is concerned.

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3. Apart from the same, the Court below also awarded extra cost towards construction of house, damages towards change of residence, value of the tree so also ordered for payment of additional market value @ 12% on the enhanced compensation and solatium @ 30% of the market value and statutory interest in terms of the Act, 1894.

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4. Though, the Appeal has been preferred on various

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grounds, the learned State Counsel, drawing attention of this Court to Paragraph No.6 of the impugned order, submitted that the Court below, relying on the Ext.1 and applying the principle of guess estimate, enhanced the compensation of the acquired land to Rs.2500/- per decimal instead of Rs.700/- per decimal, as had been awarded by the Land Acquisition Officer, shortly, LAO.

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5. Learned Counsel for the State-Appellants further submitted that the notification for acquisition of land was made on 23.06.1997, whereas the R.S.D. marked as Ext.1 is dated 06.07.1991. The kisam of suit land, so far as Ext.1, is bagayat whereas, the land of the Respondent was of kisam gharabari. However, not only the Court below, applying the principle of guess estimate, held that the cost of bagayat kisam of land would be around approximately Rs.2500/- per decimal in the year 1997, but also illegally held that the valuation of gharabari land being a little bit higher than bagayat kisam of land, should be Rs.2750/- approximately. Hence, in absence of any direct evidence to the said effect, the Court below was not justified to enhance the compensation for acquisition of gharabari kisam of land so also compensation for construction of house, it being a thatched house with inside attu.

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6. Per contra, learned Counsel for the Private Respondent, drawing attention of this Court to the ordering portion of the impugned order, submitted that though the Court below was of the view that the valuation of the gharabari kisam of land would be Rs.2750/-, but it awarded the compensation @ Rs.2500/- per decimal and the area of land acquired by the State was merely four decimals.

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7. Learned Counsel for the Respondent, drawing attention of this Court to Exts.2 to 4, which are judgments passed by the same Court regarding compensation awarded towards construction of house, submitted that though Ext.4 demonstrates that the compensation awarded for the construction of house was @ Rs.200/- but the Court below, taking into consideration Exts.2 and 3, awarded compensation @ Rs.100/- per square feet for construction of house, which is at a lower side.

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8. Mr. Panda further submitted, law is well settled that if bench mark valuation or R.S.D is prior to the date of notification for acquisition of land, the parties are entitled to enhanced compensation, minimum @ 10% to 15% enhancement over and above the valuation as per the R.S.D. Accordingly, there

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being no infirmity in the impugned order, the Appeal preferred by

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the State deserves to be dismissed.

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9. Mr. Panda further submitted that as Appeal is pending since 2010, a direction be given to the State-Appellants to disburse the deferential enhanced compensation with other statutory dues, as ordered by the Court below, at the earliest within a stipulated period.

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10. In view of such submission made by the learned Counsel for the parties, paragraphs No.6 & 8 of the impugned judgment, being relevant, are reproduced below.

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“6. Admittedly, the Government has acquired Ac0.04 decs of land from plot no. 87-under khata no. 129 and plot no. 95 under khata no. 279/33 at mouza Kalamisri Jayant apur under Salipur Ps-in the district of Cuttack. The kisam of the schedule land was gharabari'. The Government has paid Rs 2001/- towards the value of land acquired. So the rate of compensation per decimat was 700/-. The Governsent valued one acre of land at the rate of Rs 70,000/-. The petitioner is not satisfied with this valuation. In his evidence before the court, he has stated that the value of land would be Rs 10,000/- to Rs 20,000/- per gunth. To substantiate his evidence, the petitioner has proved certified copy of sale deed No. 2509 dated 6.7.1991 which is marked as Ext.1. Ext.1 indicates that in the year 1991, Ac0.004 dec 06 kadi of 'bagayat' land was sold for Rs 5800/-. So one decimal of land was valued at Rs 1250/- in the year 1991. That was the rate for bagayat kisam of land. So, rate of ghara bari land must have been something more than Ra 1250/-, when the acquisition was made in the year 1997 the rate of land usually must have gone high. At least, the rate of land must have been doubled by the year 1997. So, approximately one decimal bagayt land must be costing than Rs 2500/-. The valuation of the gharabari land that to the land on which the house stands must be a little higher than bagayat kisam of land. Then the value of one decimal of gharabari land would come around Rs 2750/by approximation. But the Government has paid

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compensation at the rate of Rs 700/- per decs Such compensation was not adequate one. Hence as per my calculation the land acquired by the Government must be valued at Rs 2750/- per decimals in the case in hand.

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8. It is admitted that the petitioner had his house over the acquired land. The petitioner claim that his residential house was built upon an area of 1140 sqft. The witness examined on his behalf corroborate to that effect. The nature of construction is that the residential houses was thatched house with inside ATTU. The walls were made up with bricks. There was cement floor. Apart from the above there was a cow shed of area 20 x 12' over plot no. 95 under khata no. 279/33. From the evidence on record, it is very difficult to decide the value of construction in terms of square feet. But keeping in view the cost of house, building materials the rate of wages. I find that the rate of construction would come around Rs 100/- per square feet. The petitioners claim that there was construction covering 1140 sqft. Hence, the petitioner is entitled to compensation for the construction covering 1140 sqft at the rate of Rs 100/-per square feet.”

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11. Admittedly Ext.1 is of the year, 1991 and the suit land was acquired in the year, 1997. Since there is no sale deed or bench mark valuation available of the said mouza of gharabari kisam of land, even though Ext.1 pertains to bagayat kisam of land of the neighbouring mouza, in absence of working sheet and valuation report, which should have been produced and exhibited from the side of State, this Court is of the view that the Court below was justified to rely on Ext.1.

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12. Apart from that, this Court is also of the view that the Court below was justified to apply guess estimate to determine the market value of bagayat kisam of land in the year, 1997 and

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adding thereto further value towards gharabari kisam of land and applying the principle of guess estimate determined the market value of the acquired land to Rs.2500/- per decimal. That apart, this Court is also of the view that in view of the documentary evidence available on record i.e. Exts.2 and 4, the Court below was also justified to award compensation of Rs.1,14,000/- @ Rs.100/- per square feet towards construction for house in favour of the present Respondents.

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13. Accordingly, in view of the findings of the Court below so also discussions made above and the observations made by this Court, the Appeal stands dismissed. The State-Appellants are directed to disburse the enhanced compensation with other statutory dues, as detailed in the ordering portion of the impugned judgment dated 14.08.2009, at the earliest, preferably within a period of four months from the date of production of the certified copy of this Judgment.

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…….……………………

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S.K. MISHRA, J.

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Orissa High Court, Cuttack. Dated, 17^th December, 2024 / Mona

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Signature Not Verified

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Digitally Signed Signed by: PRASANT KUMAR PRADHAN Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 28-Dec-2024 16:47:20

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State v. Mandardhar Nayak

Case brief

What is this about?

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State v. Mandardhar Nayak

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

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