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2005 DIGILAW 468 (ORI)

Padmalochan Panda v. State of Orissa

2005-08-05

L.MOHAPATRA

body2005
JUDGMENT L. MOHAPATRA, J. : The petitioner in this writ applica¬tion challenges the legality of the orders passed by the authori¬ties under the Orissa Land Reforms Act in Annexures-1, 8, 9 and 10. 2. The case of the petitioner is that in a ceiling pro¬ceeding under the Act, 394.92. acres of land in villages Sitlen¬pali, Dakara, Raghunathpali and Basiapada were found to be sur¬plus and the State Government took possession of the same on 15.2.1985. Sisal plants were grown on the lands located in the villages Sitlenpali and Dakara and in other lands, fruit bearing trees like Jamu, Barakoli, Bahiala, medicinal plants and bamboos had been grown. It is also the case of the petitioner that there was a house over plot No.2182 in village Basiapada. After taking possession of the said lands, a Draft Assessment Roll under Section 48 of the Act was prepared and the petitioner was offered a sum of Rs.3,99,010.55 as compensation and objections were invit¬ed. The Draft Assessment Roll is annexed to the writ application as Annexure-1. Since the Draft Assessment Roll did not contain the rates and basis of calculation, the petitioner filed an application 19.9.1989 before the opposite party No.2 for furnish¬ing the details of calculation of compensation. The details having not been supplied by the opposite party No.2, Tahasildar, the petitioner filed objection on 10.12.1989 before the opposite party No.2. According to the petitioner, the compensation as¬sessed towards land is too low and is not in accordance with law. The compensation assessed towards Sisal plants at Rs.1,63,022.50 is without any basis and without calculating the number of trees, their age, etc. The claim of the petitioner is that there were 2750 Sisal plants per acre and accordingly, he was entitled to compensation of Rs.2,66,21,804.25 only in respect of Sisal plants. It is also the case of the petitioner that the fruit bearing trees, bamboos and other plants have been wrongly assessed by the opposite party No.2 at Rs.2,05,050.05 whereas the actual price of the said trees would be Rs.25,29,315.50. The petitioner also claimed compensation of Rs.3,75,000/- against fire wood that would have been available form the trees and Rs.1,87,875/- towards branches of the trees, Rs.44,260/- towards bamboos and Rs.1,00,000/- towards loss of profit form the fruit bearing trees. The petitioner claimed a compensation amount of Rs.2,98,99,192.75 with interest apart form solatium at the rate of 30%. The petitioner also claimed compensation of Rs.3,75,000/- against fire wood that would have been available form the trees and Rs.1,87,875/- towards branches of the trees, Rs.44,260/- towards bamboos and Rs.1,00,000/- towards loss of profit form the fruit bearing trees. The petitioner claimed a compensation amount of Rs.2,98,99,192.75 with interest apart form solatium at the rate of 30%. The details of calculation made by the petitioner is given in Annexure-2. According to the petitioner, after taking possession of the lands on 15.2.1985, no steps were taken by the Government officials to protect the Sisal plants and the trees in spite of the letter written by the petitioner, as a result of which, when the verification was made for assessment of valuable trees and plants after lapse of about two years, most of the Sisal plants were damaged and accordingly, the calculation made by the opposite party No.2 cannot be correct. 3. At the time of argument, Shri S.K. Das, the learned counsel appearing for the petitioner submitted that before the opposite party No.2 in course of hearing of the objection, the petitioner had examined himself and four others to substantiate his claim. D. W. 4 is a Senior Scientist of Sisal Research Cen¬tre, Bamara under the Central Government and Indian Council of Agricultural Research. According to Shri Das, D.W.4 being an Expert on Sisal plantation, his version should have been accepted by the Tahasildar for computation of compensation. Instead of relying on his evidence, the Tahasildar relied on the report of the Soil Conservator Officer, Hirakud who is not an expert with regard to Sisal plants and its bye-products and, therefore, the compensation calculated on the basis of such report of the Soil Conservator Officer is not acceptable. In respect of fruit bear¬ing trees, bamboos, medicinal plants etc., it is also alleged by the petitioner that opposite party No.2 did not make any proper assessment and arrived at a wrong figure, which is much lower than what the petitioner is entitled to. The objection of the petitioner having been rejected, he preferred an appeal and being unsuccessful in appeal, he also approached the revisional Court and having lost in all the Courts, the petitioner has approached this Court for the relief claimed. 4. A counter affidavit has been filed on behalf of the opposite parties 2, 3 and 4. The objection of the petitioner having been rejected, he preferred an appeal and being unsuccessful in appeal, he also approached the revisional Court and having lost in all the Courts, the petitioner has approached this Court for the relief claimed. 4. A counter affidavit has been filed on behalf of the opposite parties 2, 3 and 4. It is stated in the counter affida¬vit that the land measuring 394.92 acres in the villages men¬tioned in the writ application vested in Government on 5.2.1983 by order of the Revenue Officer in a Civil Proceeding. The pos¬session of the surplus ceiling lands in the aforesaid villages were taken over on 26.2.1983 and 25.1.1985 respectively. It is further stated in the counter affidavit that Sisal plants and other trees were grown on the lands in the above villages at the time of enumeration but there was no house over plot No.2182 as claimed by the petitioner. In paragraph-5 of the counter affida¬vit, it is stated that the Draft Assessment Roll was sent to the petitioner on 6.9.1989 wherein the compensation was calculated and was intimated to the petitioner. In paragraph-7, it is stated that the possession of the surplus lands of villages Sitlenpali and Dakara were taken over on 25.1.1985 and enumeration work of the plants and trees were immediately started and process of enumeration was completed on 29.9.1985. In view of the above, there was no necessity of protecting the Sisal plants by posting of any officials for the purpose. After enumeration, it is stated that compensation was calculated at Rs.30,938/- for the lands, Rs.1,63,022.50 for Sisal plants and Rs.2,050.05 for standing trees and no compensation was assessed for any house as claimed. In paragraph-9, it is stated that the compensation calculated towards Sisal plants was made correctly in consultation with the Soil Conservation Officer, Hirakud Division, Burla and Director of Soil Conservation Department, Bhubaneswar and the rates were assessed in accordance with the enumeration of Sisal plants in the aforesaid two villages on the basis of the report of the Amin. In respect of trees and other plants, it is stated in the counter affidavit that the assessment has been made correctly and the petitioner is not entitled to any further claim. In respect of trees and other plants, it is stated in the counter affidavit that the assessment has been made correctly and the petitioner is not entitled to any further claim. At the time of hearing of the writ application, the learned counsel for the State referring to the report of the Soil Conservation Officer as well as judgments passed by the Courts below submitted that the assessment having made in terms of the report submitted by the Soil Conservation Officer as well as by the Amin, there is no reason to interfere with the orders and enhance the compensation already assessed by the Tahasildar-opp.party No.2. 5. Shri S. K. Das, the learned counsel appearing for the petitioner submitted that the opposite parties in the counter affidavit admitted to have taken possession of the surplus land extending an area of Ac.362.20 decimals in villages Sitlenpali and Dakara on 25th January, 1985. It is further admitted in the counter affidavit that the numeration work of Sisal plants was done in January, 1988 and that compensation for Sisal plants was assessed in consultation with the Soil Conservation Officer, Hirakud Division, Burla and Director of Soil Conservation Depart¬ment. Shri Das further contended that though reliance was placed on the report of the Soil Conservation Officer, he was not exam¬ined before the Court. According to Shri Das, by letter No.2148/LR dated 20th March, 1979 the Board of Revenue issued instructions to the effect that the market value of the trees, bamboos and fire wood should be assessed on the inspection report of the Revenue Officer and in the present proceeding, the Revenue Officer was also not examined. D.Ws.3 and 4, who are Experts were examined on behalf of the petitioner, but their evidence has not been accepted while assessing the compensation in respect of Sisal plants. With regard to timber, it was contended by Shri Das that as per instructions of the Board of Revenue in order to arrive at the market value, the girth should be taken at the breat height of the trunk and the rate prescribed for the rele¬vant girth in the said letter should have been taken into consid¬eration. With regard to timber, it was contended by Shri Das that as per instructions of the Board of Revenue in order to arrive at the market value, the girth should be taken at the breat height of the trunk and the rate prescribed for the rele¬vant girth in the said letter should have been taken into consid¬eration. Relying in paragraph-5 of the said letter, it was con¬tended that the useful height should be taken into consideration i.e. height of the tree form growth level up to the point where the tree begins to branch off in such a manner that the branches do not come within the girth range of the timber. It was also contended that the market price of different categories of tim¬bers had been fixed by the Forest Corporation, Sambalpur Division as per Annexure-7. The market rate so fixed should have been fol¬lowed while determining the market price of the timber, but the Revenue Officer neither followed the instructions of the Board of Revenue with regard to measurement of the timber nor the market price was fixed in terms of the rates filed by the Orissa Forest Corporation. So far as market price of Sisal plant is concerned, it was contended by Shri Das that the Revenue Officer only as¬sessed the market price of hushy growth on the surplus land and the tamarind and mango trees were only treated for the purpose of fire wood. The branches of such trees and other categories of trees were not considered at all. In respect of medicinal plants and fruit bearing trees, it was contended by Shri Das that the Revenue Officer should have taken the medicinal plants as sepa¬rate class of valuable plants. Instead of doing so, the Revenue Officer assessed the medicinal plants as fire wood treating it as bush growth. In respect of bamboos, it was contended by Shri Das that the market price of the Salia bamboo has not been fixed as per the rate prescribed by the Orissa Forest Corporation. Though the Forest Corporation has fixed the price of Salia bamboo at Rs.1.25 paise, the Revenue Officer has fixed only 10 paise per piece. In respect of bamboos, it was contended by Shri Das that the market price of the Salia bamboo has not been fixed as per the rate prescribed by the Orissa Forest Corporation. Though the Forest Corporation has fixed the price of Salia bamboo at Rs.1.25 paise, the Revenue Officer has fixed only 10 paise per piece. Apart form the above, Shri Das also contended that under Section 50 of the Orissa Land Reforms Act, the petitioner is entitled to interest at the rate of 25% per annum form the date of taking over possession of the ceiling surplus land on the enhanced amount. 6. The learned counsel for the State, on the other hand, submitted that the compensation has been assessed on the basis of the report of the Soil Conservation Officer and Director of Soil Conservation Department, who are experts in assessing not only the age of the plant but also value thereof and, therefore, the Revenue Officer has rightly relied on the report of the said Soil Conservation Officer while assessing the value of Sisal plants. It was also contended by the learned Additional Government advo¬cate that the value in respect of the fire wood, medicinal plants, bamboos etc. were assessed on the basis of the reports available with the Revenue Officer and as per instructions re¬ceived form the Board of Revenue form time to time and also as per provisions of the O.L.R. Act. The learned Additional Govern¬ment Advocate relying on the report of the Soil Conservation Officer submitted that the petitioner is not entitled to any further compensation. 7. In order to appreciate the rival contentions raised by the learned counsel for the parties, it is necessary to look into the findings of the Courts below. After preparation of the Draft Assessment Roll, objections were invited and the petitioner filed his objection on 19.9.1989 before the Additional Tahasildar, Sambalpur. The records were transmitted to Tahasildar, Sambalpur on 27.9.1989. In course of hearing of the objection, the peti¬tioner examined himself and some other witnesses in support of his objection that physical verification with regard to number of Sisal plants, their age had not been made and in absence of the above figures, proper assessment with regard to value of Sisal plants cannot be made. Objection was also raised with regard to non-consideration of a house existing in village Basiapada. Objection was also raised with regard to non-consideration of a house existing in village Basiapada. Proper valuation was also not made in respect of fruit bearing trees, bamboos and medicinal plants. Apart form the above, a further objection was also raised regarding commercial use of the Sisal plants as well as firewood. The Tahasildar though consid¬ered the objection, rejected the same solely on the basis of the report of the Soil Conservation Officer on the ground that the said Officer is a Government Officer and is an Expert. Form the order passed by the Tahasildar, it appears that he had not con¬sidered the evidence adduced on behalf of the petitioner specifi¬cally the evidence of Kishan Singh, who is said to be an Expert on Sisal plants. In appeal also a similar view was taken and no reason has been assigned as to why the evidence adduced on behalf of the petitioner is not acceptable. In the revision filed by the petitioner also the learned A.D.M. (O.L.R.), Sambalpur has given similar findings. 8. So far as Sisal plants are concerned, there is no dispute that such plantation had been made in two villages name¬ly, Sitlenpali and Dakara over an area of 362.20 acres of land which were found to be surplus. Shri Kishan Singh, who is a Scientist in-charge of Sisal Research Station, Indian Council of Agricultural Research not only addressed a letter to the Addi¬tional District Magistrate, Sambalpur with regard to value of the Sisal plants but also examined himself on behalf of the petition¬er. It is stated in the said letter dated 6th December, 1986 that life span of cultivated Sisal plants generally varies form 10 to 12 years depending upon climatic, soil types and soil fertility conditions. In the said letter, calculation of Sisal plants had been mentioned on acre basis and it is mentioned that profit for 2500 plant population will be Rs.9,166.66 per acre and profit for 3000 plant population will be Rs.11,000/- per acre. It further appears form the said letter that the valuation has been done in respect of Sisal plants that one can earn form different use of such plants. The Soil Conservation Officer on whose evidence reliance has been placed by all the Courts below indicates the method of calculation of plants. It further appears form the said letter that the valuation has been done in respect of Sisal plants that one can earn form different use of such plants. The Soil Conservation Officer on whose evidence reliance has been placed by all the Courts below indicates the method of calculation of plants. In the report which is annexed to the writ application as Annexure-5 it is stated by the Soil Conservation Officer that attempts were made to count Sisal plants in each and every plot one by one. In view of the bush growth and the topography, the idea of counting each and every plant was abandoned. The entire plantation was divided in groups of sample plots of size 66" X 66" and the number of plants avail¬able for sample plots were counted. On the basis of the sample plots, counting the plant population per acre for each age group was found out and accordingly, the Soil Conservation Officer found that there were 3,25,944 Sisal plants of different age groups standing over 362.20 acres of land in the aforesaid two villages. So far as valuation of Sisal plants is concerned, the Soil Conservation Officer has observed in his report that cost of cultivation of Sisal plants per Hectare is Rs.2,200/- and 5000 plants can be planted in each Hectare. As per the prevalent rate of Suckers sold to the private parties in the Soil Conservation Department, the cost of the same comes to Rs.0.25 paise. In the report, the Soil Conservation Officer has also assessed the valuation of the Sisal plants in the following manner : ___________________________________________________________________________________________________________________________ _________________________________________________________________________________________________________________________ One year old Rs.0.25 Rs.0.19 — - Rs.0.44 2 year old Rs.0.25 Rs.0.19 Rs.0.10 - Rs.0.54 3 year old Rs.0.25 Rs.0.19 Rs.0.20 - Rs.0.64 4 year old Rs.0.25 Rs.0.19 Rs.0.23 - Rs.0.74 5 year old Rs.0.25 Rs.0.19 Rs.0.40 - Rs.0.84 6 year old Rs.0.25 Rs.0.19 Rs.0.50 0.12 Rs.0.72 7 year old Rs.0.25 Rs.0.19 Rs.0.60 0.24 Rs.0.60 ________________________________________________________________________________________________________________________________________________________________________________________________ __________________________________________________________________________________________________________________________ 1978 7 years 41,058 0.60 Rs.24,635/- 1979 6 years 51,922 0.72 Rs.37.384/- 1980 5 years 61,119 0.84 Rs.51,340/- 1981 4 years 52,052 0.74 Rs.38,518/- 1982 3 years 1,19,793 0.64 Rs.76,668/- ___________________________________________________________________________________________________________ Total 3,25,944 Rs.2,28,545/- 9. When a comparison is made between the report of the Soil Conservation Officer and the evidence of Kishan Singh, an Expert Scientist working in Sisal Research Station, Indian Coun¬cil of Agricultural Research, one finds a big gap with regard to valuation of the Sisal plants. Form the judgment of the Tahasildar, it appears that no effort has been made at all to compare both the state¬ments and arrive at a conclusion. It further appears that such a question was again raised in appeal and the appellate authority in its judgment observed that in the report of the Soil Conserva¬tion Officer the factual number of Sisal plants has not been ar¬rived at, but at the same time did not consider the evidence adduced on behalf of the present petitioner specifically the evidence of Kishan Singh in order to arrive at a conclusion. Without applying mind, the appellate authority further observed that since the trial Court is satisfied with the report of the Soil Conservation Officer while preparing the Draft Assessment Roll, he does not want to interfere with the same. Before the A.D.M. (O.L.R.), Sambalpur the petitioner also raised the very same question and the revisional authority avoided to answer the question by saying that he agreed with the argument of the Addi¬tional Government Pleader that 22 Sisal plants per decimal, four big trees, two bamboo plants in an area of 20' X 25' are not possible to grow. Without discussing the evidence available on record, the revisional Court observed as follows :- “After carefully going through the lower Court records, the revision memo, oral and documentary evidence, I have little scope to interfere with judgment of the Courts down below....” 10. Since the points raised before this Court by the learned counsel for the petitioner had also been raised before all the forums under the O.L.R. Act and were not answered either directly or indirectly, there is no option left with this Court except remanding the matter to the revisional authority for reconsideration on the basis of the evidence available on record. Therefore, the revisional authority, so far as Sisal plants are concerned, while reconsidering the revision shall take the fol¬lowing into consideration :- 1. Therefore, the revisional authority, so far as Sisal plants are concerned, while reconsidering the revision shall take the fol¬lowing into consideration :- 1. Though possession of the land was taken in January, 1985, the assessment of number of trees were made in November, 1987 and it may be possible that within two and half years the Sisal plants standing on the land might have got destroyed as there is no evidence to show that proper care was being taken by the Government Officers to guard the plantation form being destroyed. 2. The evidence of Kishan Singh, who is also an Expert and is a Government Officer shall be taken not consideration along with the report of the Soil Conservation Officer in order to arrive at the right conclusion with regard to the number of Sisal plants that may be available at the time of taking possession of the lands, their age as well as valuation. 3. Admittedly the number of Sisal plants having not been calcu¬lated and a wrong method of calculation having been adopted, it is necessary for the revisional Court to look into this aspect of the order passed by the Tahasildar also. 4. Form the record, it appears that an Amin was deputed to make a spot visit and submit a report with regard to number of trees and their age. The Amin also submitted the report on 25th Janu¬ary, 1988. Though the learned counsel for the State was directed to produce the copy of the report, the records produced by the learned counsel for the State does not contain the said report. The revisional authority shall obtain the report of the said Amin form the concerned Tahasildar and also consider the same with regard to the number of plants as well as their age in order to find out the actual compensation, the petitioner is entitled to. 5. So far as house is concerned, since there is concurrent finding that there was no house, I decline to pass any order in absence of any evidence to show that there was in fact a house at the time of taking possession. 6. So far as timber, firewood and bamboos are concerned, it is contended by the learned counsel for the petitioner that the rate at which the Orissa Forest Corporation was selling timber, fire¬wood etc. 6. So far as timber, firewood and bamboos are concerned, it is contended by the learned counsel for the petitioner that the rate at which the Orissa Forest Corporation was selling timber, fire¬wood etc. at the relevant time should have been taken into con¬sideration for calculating the compensation. Therefore, it ap¬pears that there is considerable force in the contention of the learned counsel for the petitioner. I, therefore, further direct that while considering the value of the timbers and fire woods as well as bamboos, the revisional authority shall not only take into consideration the circular issued by Board of Revenue re¬ferred to earlier but also the rates at which the Orissa Forest Corporation was selling timber at that point of time and arrive at figure for calculation of the compensation. 11. With the above directions, the writ application is allowed and the matter is remitted back to the opposite party No.4 for reconsideration of the revision on the basis of the guide¬lines indicated above. Consequently, the revisional order in Annexure-10 is set aside. Application allowed.