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2004 DIGILAW 483 (ORI)

SRI BHUBAN CHANDRA BARDHAN v. L. A. COLLECTOR

2004-11-02

P.K.TRIPATHY

body2004
JUDGMENT : P.K. Tripathy, J. - This appeal u/s 54 of the Land Acquisition Act, 1894 (in short 'the Act') has been filed by the claimant in L.A. Misc. Case No. 95 of 1993 of the Court of Civil kludge (Senior Division), Balasore as against the award passed on 28.9.1994. 2. The undisputed fact available from the record is that in Revenue Department Notification No. 19110/R dated 24.4.1991 published in Orissa Gazette (Extraordinary) No. 600, dated 23.5.1991 an area of Ac. 1.339 decimals of land in Mouza Damodarpur within the Balasore Municipal limits was acquired for construction of approach road to the bridge of river Budhabalanga. An area of Ac.0.29 decimals of 'Bagayat' II land of the claimant from Plot No. 480 was acquired by the respondent, in that respect, the respondent assessed the compensation @ rupees two lakhs per acre. The claimant raised objection to such low valuation inter alia on the ground that the adjoining land acquired for the same purpose was valued by the respondent at rupees seven lakhs per acre and that the market price of the acquired land having the potency of homestead land was much more and above twenty lakhs per acre, in view of that objection, the matter was referred to the Civil Judge in accordance with the provision u/s 18 of the Act. 3. In course of hearing, claimant examined himself as P.W. No. 1 and relied on documents marked Exts 1 to 10. Out of them Exts. 2 to 7 are the copies of record of right and information slip relating to corresponding plot in the Sabik Khata and current settlement. Ext. 1 a certified copy of the registered sale deed of the year 1988, Exts. 8 and 8/a two rent receipts and Exts. 9 and 10 the awards passed in L.A. Misc. Case No. 89, 93 and 92 of 1993 by the same Court. Respondent examined the Revenue Inspector of its office as the O.P.W. No. 1 and relied on documents marked Exts. A to D. Out of that, Ext. D is the copy of the village map showing the relevant area, Ext. C is the copy of the sale statistics of Mouza-Damodarpur, Ext. B is the copy of the order-sheets in which valuation was determined by the respondent and Ext. A is the copy of the Notification No. 600 dated 23.5.1991. 4. A to D. Out of that, Ext. D is the copy of the village map showing the relevant area, Ext. C is the copy of the sale statistics of Mouza-Damodarpur, Ext. B is the copy of the order-sheets in which valuation was determined by the respondent and Ext. A is the copy of the Notification No. 600 dated 23.5.1991. 4. On assessment of such evidence on record, Learned Civil Judge recorded the findings that the category of the acquired land, being noted in the Record of Right as Bagayat-II whereas the category of the lands covered by the awards Exts. 9 and 10 are recorded as homestead land and therefore, the valuation fixed for homestead land cannot be adopted for the land of the claimant. Learned Civil Judge also recorded the finding that there is no worthy evidence on record to prove that the acquired land was developed to the homestead land by the date of acquisition and therefore, on the matter of valuation the same is not comparable with homestead land even if adjoining to get compensation on the basis of determination of valuation of the acquired land as Bagayat. So far as the Bagayat category of land is concerned, the respondent on the basis of sale statistics of the year 1989 fixed the price at rupees two lakhs per acre. By the date of Notification u/s 4 of the Act, about two years had elapsed and apart from that the acquired land, though a low lying land being adjacent to the homestead land, it should get at least, half the price of the homestead land and not below one third rate as determined by the respondent. Taking that view in the matter, Learned Civil Judge determined the market price of the acquired land at Rs. 3,75,000/- per acre because the value of homestead land was determined in Exts. 9 and TO at Rs. 7,50,000/-. So far as the claim of compensation for loss of Nim tree is concerned, Learned Civil Judge refused to consider the same because that was not a part of the reference. 5. Learned Counsel for the appellant argued that Learned Civil Judge determined the valuation in the aforesaid manner and declined to grant parity to the land of the appellant with that of the homestead land by not referring to relevant evidence of P.W. 1 and the O.P.W. No. 1. 5. Learned Counsel for the appellant argued that Learned Civil Judge determined the valuation in the aforesaid manner and declined to grant parity to the land of the appellant with that of the homestead land by not referring to relevant evidence of P.W. 1 and the O.P.W. No. 1. He invited attention of the Court to the evidence of O.P.W. No. 1 in that respect. It is seen from the evidence of O.P.W. No. 1 that in cross-examination, he has stated that: "2. I had been to spot for enquiry Plot No. 480/943 belongs to Taramani Devi. It is adjoining to the case land. Advantages to both the lands are similar. Both lands are adjoining to a morrum road leading from Balighat to Motiganj. It is not a fact that this case land is also Gharabari in kisam and that though in the ROR its kissam is recorded as Bagayat. it is fit for homestead, 3. Plot No. 480. 480/943 and 480/943 are at same level. Barabati Girl's High School is 1/2 Km. from the spot. There are 40 to 50 dwelling houses in between that High School and the acquired case land. 4. It is not a fact that case land is in the heard of the Town. The case land can be used as homestead. There was a Neem tree on the case land which I found at the time of spot inquiry. Its girth is 12 1/2, and height is about 55'. Its valuation was fixed by the L.A. Collector without inviting any report from Forest Deptt. It is not a fact that its valuation is more than Rs. 6000/-. It is not a fact that the valuation of the case land would be Rs. 20,00,000/- per acre. It is not a fact that it is not low land." (Underlined portions are to put emphasis) 6. According to Learned Counsel for the appellant, that all the lands were at one level and similar advantage is available to those, therefore, there could not have been any discrimination in granting equal compensation on the ground that it was a low lying land. Learned Counsel for the State on the other hand argued that the aforesaid evidence cannot be read to atribute the meaning that the Bagayat land of the appellant was at the same high height at the homestead of the claimants in other L.A. Misc. Cases (Exts. Learned Counsel for the State on the other hand argued that the aforesaid evidence cannot be read to atribute the meaning that the Bagayat land of the appellant was at the same high height at the homestead of the claimants in other L.A. Misc. Cases (Exts. 9 and 10) and, therefore, the valuation determined by the Learned Civil Judge being already on the higher side, that should not be further enhanced. 7. On due consideration of the aforesaid argument and perusal of the evidence on record, both oral and documentary, this Court finds that the stray evidence of O.P.W. No. 1 in the cross-examination ipso facto does not change the quality of the acquired land from Bagayat to homestead land. It is the settled principle of law that the burden is heavy on the claimant to prove that the acquired land had a higher market price than the rate at which award was passed u/s 11 of the Act and, therefore, he is entitled to the higher compensation. For that claimant is to bring proper evidence on record. In that respect, it is seen that in the record of rights, which was recently published (shortly before the acquisition) category of the acquired land in this case was recorded as Bagayat II whereas in the same settlement, the adjoining lands was recorded as Homestead II. Appellant has not adduced any evidence on record and he did not depose by stating that after purchasing the land he developed that to homestead land by taking ail necessary expenditure for its development as such. When the appellant claims a compensation @ rupees twenty lakhs per acre as against the determination @ rupees two lakhs per acre, he could not have remain complacent by merely adducing the aforesaid evidence. He should have produced reliable and cogent evidence in support of his contention. The appellant purchased the land in the year 1984. He has not adduced any evidence as to when village Damodarpur became a part of Balasore Municipality what was the price paid by him for purchasing that land 7 years before, the date of acquisition and when the different institutions like School etc. grew around the acquired land. When no such evidence was adduced by the claimant, to prove a just case of higher compensation, he cannot insist for a higher compensation merely on the basis of Exts. grew around the acquired land. When no such evidence was adduced by the claimant, to prove a just case of higher compensation, he cannot insist for a higher compensation merely on the basis of Exts. 9 and 10 when admittedly the category of land in the record of rights is different and distinguishable. 8. Be that as it may, when the sale statistics indicated that two lakhs was the market price of Bagayat land in the year 1989, increase @ 10% per annum would have been more appropriate and therefore, price of the acquired land should not have been more than Rs. 2,20,000/- per acre. Learned Civil Judge determined the price at Rs. 3,75,000/- per acre and the State has not challenged that either by filing an appeal u/s 54 of the Act or by filing a cross objection under Order 41, Rule 22, CPC under such circumstance, this Court does not feel it necessary to interfere with the award by reducing the rate. 9. For the reasons indicated above, this Court finds no merit in the appeal and therefore, the same is dismissed. Parties are directed to bear their respective costs of litigation. Hearing fee be assessed at contested scale. Final Result : Dismissed