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2002 DIGILAW 778 (ORI)

ZONE OFFICER, U. I. P. v. LAXMINARAYAN PRAHARAJ

2002-12-04

PRADIP MOHANTY

body2002
JUDGMENT : Pradip Mohanty, J. - This appeal is directed against the order dated 27.9.1995 passed by the learned Civil Judge (Sr. Divn.), Dharamgarh, in M.J.C. No. 22 of 1995. 2. The case of the appellant is that the Government acquired Ac. 0.85 decimals of land under Khata No. 70/9, Plot No. 708 of village Mutualguda in the district of Kalahandi which belonged to the claimant-respondent by Notification published in E.O.O.G. No. 304 dated 19.3.91 and subsequent notification published in E.O.O.G. No. 283 dated 28.2.92, for the purpose of construction of the Sub-Minor for Upper Indravati Project. The Land Acquisition Officer, Kusumkhunti, in the district of Kalahandi, awarded compensation of a sum of Rs. 18,804/- towards cost of the land which the claimant received on protest. The respondent-claimant claims that there was a pond and a pucca boundary wall around it. He was doing pisciculture in the said pond and was earning Rs. 20,000/- per annum from said pisciculture and, besides this, the claimant was also earning Rs. 50,000/- per annum from cultivation of sugar-cane and vegetables in the said land. The respondent-claimant avers that he had a desire to have an industrial unit on the acquired land for establishing his highly educated son, but because of acquisition of the land by the Government, all his hope shattered. He claims that the award amount of Rs. 18,804/-given by the Land Acquisition Officer is very low and he received the same on protest for which the reference was made u/s 18 of the Land Acquisition Act. 3. The learned trial Judge after assessing the evidence, both oral and documentary, arrived at the conclusion that the award amount of Rs. 18,804/- awarded by the Land Acquisition Officer was very low. Accordingly, the learned trial Judge directed that the claimant is entitled to get compensation of Rs. 55,000/- for the loss of pond and Rs. 1,00,000/- for the pucca compound wall being the market price at the relevant time along with all other statutory benefits. 4. During the hearing of the appeal, Mr. Raut, learned Additional Standing Counsel, argues that the Court below has failed to appreciate the scope and ambit of Sections 23 and 24 of the Land Acquisition Act for determination of the market value of the compound wall and the pond. His further contention is that, the learned Civil Judge has erroneously relied upon Exts. Raut, learned Additional Standing Counsel, argues that the Court below has failed to appreciate the scope and ambit of Sections 23 and 24 of the Land Acquisition Act for determination of the market value of the compound wall and the pond. His further contention is that, the learned Civil Judge has erroneously relied upon Exts. 1 and 2, the estimates prepared by the local Engineer in respect of the pond and the compound wall respectively. He, however, also does not dispute the valuation of the land in question. It is rather contended that the learned Civil Judge should have accepted Exts, C and C/1, the estimate prepared by the Government Engineer and his signature therein. The contention of Mr. Kanungo, learned counsel for the claimant-respondent, on the other hand, is that the Court below has rightly passed the order after considering the evidence of both parties relating to the market value and potentiality of the land in question, the compound wall and the pond. Therefore, there is no illegality committed by the trial Court in determining this compensation amount. 5. This is a reference u/s 18 of the Land Acquisition Act for determining the market value for acquisition of the land including the pond and the pucca compound wall standing thereon. The issue involved in this appeal relates to the compensation awarded in respect of the compound wall and the pond. The acquisition of land was made for construction of Sub-Minor of the Upper Indravati Project. Acquisition of the land was made by the Executive Engineer, Upper Indravati Project. The area acquired covers about Ac. 0.85 decimals of land under Khata No. 7079, Plot No. 708 of village Mutualguda in the Tahasil of Jaipatna in Kalahandi district for construction of the above mentioned Sub-Minor for Upper Indravati Project. For the purpose of acquisition, notification u/s 4 followed by declaration u/s 6 of the Land Acquisition Act were published on 16,12.1991 and 28.2.1992 respectively. The Land Acquisition Officer awarded a sum of Rs. 18.804/- towards compensation in favour of the claimant-respondent which he received in full on protest and claimed higher compensation as per his objection dated 20.4.1993. Therefore, the reference u/s 18 of the Land Acquisition Act was made to the learned Civil Judge (Sr. Divn.)-cum-Land Acquisition Tribunal, Dharamgarh and the same was disposed of by awarding higher compensation. 6. 18.804/- towards compensation in favour of the claimant-respondent which he received in full on protest and claimed higher compensation as per his objection dated 20.4.1993. Therefore, the reference u/s 18 of the Land Acquisition Act was made to the learned Civil Judge (Sr. Divn.)-cum-Land Acquisition Tribunal, Dharamgarh and the same was disposed of by awarding higher compensation. 6. In the present case, in order to establish his claim, the claimant examined as many as three witnesses including himself and the consulting Engineer and proved five documents including the estimates of the pond and the compound wall prepared by the Consulting Engineer. On the other hand, the Land Acquisition Officer has examined himself as O.P.W. 1 and proved four documents (Exts. A to D) including the estimate of the pond and the compound wall (Ext. C) prepared by the Government Engineer. The learned Additional Standing Counsel mainly relied upon the estimate (Ext. C) prepared by the Government Engineer. 7. Admittedly, the pond and the pucca compound wall around it existed on the acquired land on the date of acquisition. The case of the claimant, as per his evidence, is that the size of the pond is 150' x 150' x 15' depth. The consulting Engineer (P.W. 2) who prepared the estimates of the pond and the compound wall (Exts. 1 and 2) has proved so in his evidence. On the other hand, the Land Acquisition Officer (O.P.W. 1) proved Ext. C, the true copy of the estimate prepared by the Government Engineer. The Government Engineer who prepared Ext. C has not been examined as a witness to substantiate his estimate. Ext. C is the true copy of the original estimate produced by the Land Acquisition Officer and no attempt was made by him to disprove Exts. 1 and 2, the estimates repaired by the local Engineer and nothing has been elicited from the cross-examination of P.W. 2 to disbelieve his evidence. In the absence of an original, Ext. C, the true copy of the estimate, can at best be accepted as secondary evidence. However, the Land Acquisition Officer should have taken attempt to prove Ext. C u/s 63 of the Evidence Act. He should have proved that the original was not available, or either lost or damaged. In the absence of an original, Ext. C, the true copy of the estimate, can at best be accepted as secondary evidence. However, the Land Acquisition Officer should have taken attempt to prove Ext. C u/s 63 of the Evidence Act. He should have proved that the original was not available, or either lost or damaged. He should have made attempt to prove the copy of the original document which was kept in the custody of the Land Acquisition Officer and also should have taken attempt to examine the Engineer who prepared the estimate and signed the original document. In the instant case, the learned Civil Judge has correctly assessed the valuation of the land and rightly awarded the compensation and this Court does not want to interfere with the impugned judgment passed by the learned trial Judge. 8. For the reasons stated above, the first appeal fails and is hereby dismissed, but without cost. Final Result : Dismissed