Research › Search › Judgment

Orissa High Court · body

2005 DIGILAW 476 (ORI)

PADMA CHARAN SAHU v. LAND ACQUISITION OFFICER

2005-08-10

A.S.NAIDU, R.N.BISWAL

body2005
JUDGMENT : A.S. Naidu, J. - The judgment dated 10.1.1992 passed by a learned Single Judge of this Court in First Appeal No. 290 of 1990 is assailed in this A.H.O. 2. Bereft of unnecessary details, the short facts necessary for appreciating the inter se disputes among the parties are:- In consonance with a Notification issued u/s 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') published on 27.6.1988 in the Orissa Gazette (Extraordinary), Ac.0.250 decimals of land belonging to the appellant appertaining to Survey No. 239, Patta No. 77 in question situated in village Sana Kusasthali were acquired by the State for the purpose of constructing godowns of the Orissa Warehousing Corporation. The respondent Land Acquisition Officer offered a compensation at the rate of Rs. 25,000.00 per acre to the appellant for the acquired land. The appellant received the same with objection and filed an application u/s 18 of the Act which was referred to the then Subordinate Judge, Ganjarn, Berhampur and was registered as L.A. M.J.C. No. 160 of 1988. The trial Court, on consideration of the materials produced before it as also the evidence, both oral and documentary, determined the market value of the lands acquired at the rate of Rs. 1,25.000.00 per acre and awarded compensation accordingly. Being aggrieved by the judgment of the Subordinate Judge enhancing the compensation the respondent preferred aforesaid First Appeal No. 290 of 1990 before this Court. This Court after hearing the learned counsel for the parties took the view that the evidence adduced in the case was not sufficient, inasmuch as the Court below had not taken into consideration the transactions made in near-about areas of the acquired land. This Court further observed that the compensation awarded in respect of the adjoining lands, acquired for the same purpose as in this case, i.e. construction of godowns of the Warehousing Corporation, would have thrown light for arriving at a just decision in determining the market value of the lands acquired in this case, more so because by passage of time value of land increases day by day in urban areas. On the basis of such observation this Court set aside the impugned judgment of the trial Court and remitted the matter back to the trial Court for disposal de novo. 3. On the basis of such observation this Court set aside the impugned judgment of the trial Court and remitted the matter back to the trial Court for disposal de novo. 3. Mr.Das, learned counsel for the appellant, submitted that being appellate Court this Court had the responsibility to analyse the evidence already adduced in the case. In the case at hand, four witnesses had been examined on behalf of the appellant (petitioner before the Court below) and one on behalf of the respondent (opposite party before the Court below) apart from exhibiting two documents on behalf of the appellant and two on behalf of the respondent and as such there was enough material available on record to answer the issues. According to him where evidence adduced is sufficient to enable the appellate Court to pronounce the judgment, it should make, all endeavour to finally determine the lis notwithstanding the fact that the judgment of the Court from whose decree the appeal is preferred has committed any irregularity. Mr. Das further submitted that the aforesaid principle was not kept in mind by the Court while deciding the First Appeal. It was also submitted that from the judgment of the trial Court it would' reveal that the said Court has taken into consideration all the materials available on record and has rightly come to the conclusion that the market value of the acquired land should have been fixed at the rate of Rs. 1.25,000.00 per acre. To fortify his submission, Mr. Das also relies upon an earlier judgment of a Division Bench of this Court, i.e. in First Appeal No. 249 of 1990, In that case a piece of land adjoining the present appellant's land was acquired for the same purpose under the very same Notification. The Division Bench, after thread-bare discussion of the evidence on record, by judgment dated 22.11.2000 arrived at the conclusion that the Court below had considered all the relevant materials and the conclusion arrived at by it were just and proper, and refused to interfere with the impugned judgment, thereby upholding the assessment of market value of the acquired land at Rs. 1,25,000.00 per acre. It is submitted that the aforesaid judgment of the Division Bench squarely covers the present case. 4. 1,25,000.00 per acre. It is submitted that the aforesaid judgment of the Division Bench squarely covers the present case. 4. Learned counsel for the respondent, at the other hand, submitted that the present respondent has filed a Review Petition before this Court for reviewing the aforesaid judgment of the Division Bench and, as such, the said judgment may not be taken into consideration in this appeal. 5. It appears that the only ground on which the aforesaid judgment of a Division Bench has been sought to be reviewed is that the present A.H.O. is sub judice. According to the respondent if the judgment of the Division Bench in F.A.No. 249 of 1990 is implemented, there may be inconsistency in findings if the A.H.O. is dismissed. 6. We have heard learned counsel for the parties at length. We have also scrutinized the evidence available on record. The trial Court, relying on Exts. 1 and 2 - the two registered sale deeds in respect of similar variety of land situated in the vicinity, and after analyzing the evidence of P.Ws. 1 to 4 determined the market value. The respondent though did not produce any sale deed to show the prevailing market value of lands like that of the appellant, produced some sale statistics and got examined one witness. The said witness no way supported the case of the respondent. The sale statistics produced also did not support the case of the respondent. 7. The subject-matter of the present litigation is similar to that of the aforesaid First Appeal No. 249 of 1990. In the said First Appeal a Division Bench of this Court after discussing the evidence have confirmed the market value fixed by the Court below. The State has not filed any appeal challenging the aforesaid judgment of the Division Bench. As such, the findings arrived at by the Division Bench have attained finality. In view of the fact that the lands in the present case as well as that in First Appeal No. 249 of 1990 situate in close proximity to each other, and were acquired for the same purpose under the same Notification, this Court feels that the judgment of the Division Bench in First Appeal No. 249 of 1990 squarely applies to the present case. 8. In the aforesaid scenario, we find force in the submission of Mr.Das. 8. In the aforesaid scenario, we find force in the submission of Mr.Das. That apart, in the case at hand, the petitioner-appellant had got. four witnesses examined and had produced three documents in support of his claim. The opposite party-respondent also got one witness examined and had produced two documents which were marked exhibits. Thus there are enough materials before the first appellate Court to decide the issues. Applying the provisions of Order 41, Rule 24 of the CPC which enable an appellate Court to pronounce the judgment where evidence upon the record is sufficient, we feel that there was no reason to remand the case to the Subordinate Judge for de novo trial. It is well settled that a party is to succeed or fail on the basis of the evidence adduced in the litigation and a lis has to be decided on the basis of evidence adduced. Only because a party exhibited negligence in adducing evidence, a matter should not be remanded to the Court below for a de novo trial. 9. In view of the aforesaid facts and position of law, we have no hesitation to set aside the judgment dated 10.1.1992 passed in First Appeal No. 290 of 1990 and confirm the findings arrived at by the Subordinate Judge, Berhampur in L.A.M.J.C.No. 160 of 1988. The A.H.O. is allowed. R.N. Biswal, J. I agree. Final Result : Allowed