Research › Search › Judgment

Orissa High Court · body

2019 DIGILAW 40 (ORI)

Ludra Meher v. Land Acquisition Officer, Nuapada

2019-01-16

BISWANATH RATH

body2019
JUDGMENT : Biswanath Rath, J. This is an Appeal under Section 54 of the Land Acquisition Act, 1984, being aggrieved by the judgment/award dated 15.9.2016 passed by the Senior Civil Judge, Nuapada in L.A.R. No.78/2014 with request for enhancement of compensation. 2. Short background involved in the case is that Government of Orissa acquired land of the petitioner for construction of medical and infrastructure development under Health & Family Welfare Department as per Notification No.19949/RDM dtd.10.5.2011 issued under Section 4(1) of the Land Acquisition Act, 1894 followed with declaration dated 1.11.2011 published in extraordinary Gazette No.2431 dated 3.11.2011. The acquired land involved Khata No.691 consists of only one plot vide Plot No.79 kisam Gharabari Dui measuring an area of Ac.1.34 decimals under Mouza-Sinapali situated in the district of Nuapada. The petitioner filed protest petition under Section 18 of the Land Acquisition Act after the Compensation of Rs. 90,02,807/- was received under protest. Consequently, a reference under Section 18 of the Land Acquisition Act was made by the competent authority. Case of the petitioner as borne from the record in the court below was that there is no proper assessment on the value of the land property and the amount awarded was reasonably inadequate. It is alleged that the Land Acquisition Officer failed in taking into consideration the market value during the relevant period of Notification for fixing the compensation. It is also alleged that higher sale transaction available was also not taken into account. It was further contended that the market value of the case land was not less than Rs. 2,00,000/- per decimal. It is also contended that the land is situated in prime location area of Sinapali Town and having potential value being situated in the heart of the market of the Town surrounded by the main market towards East, house of Abdul Razak Bahi towards the South, approaching road to the West, Sinapali Block Office, ICDS and Electric Office to the North. Taking plea of registered sale deed dated 1.3.2013, the appellant claimed the compensation amount per decimal remained Rs. 1,70,000/- involving the agreement undertaken prior to acquisition of land. It is also contended that even though the case land is Gharabari Dui having residential house and compound wall around the entire plot constructed by the grandfather of the appellant but this fact has been failed to be understood by the Land Acquisition Officer. 1,70,000/- involving the agreement undertaken prior to acquisition of land. It is also contended that even though the case land is Gharabari Dui having residential house and compound wall around the entire plot constructed by the grandfather of the appellant but this fact has been failed to be understood by the Land Acquisition Officer. As a consequence, there is no payment of compensation on the head of existing structures. It is also alleged that the authorities have not taken the actual price in the locality concerning the disputed land. There was no proper survey and enquiry involving the property involved. In the circumstance, the appellant claimed Rs. 2.00 crores as compensation. The State-respondent though did not file any written statement but contested the case on the plea that the compensation was just and proper. Establishing his case, the appellant examined four witnesses besides also exhibited Ext.1 to Ext.9(a). Contesting the State-respondent also while examining one witness exhibited one document, vide Ext.A. Considering the pleadings, the evidence available on record and the submission of the respective parties, the Senior Civil Judge, Nuapada while allowing the reference under Section 18 of the Land Acquisition Act directed that the claimant is entitled to get compensation @ Rs. 53,50,000/- per acre for Gharabari Dui kisam land. In addition, the appellant is entitled to the additional market value @ 12% per annum from the date of publication of notice under Section 4(I) of the Land Acquisition Act till the date of taking possession of the land, statutory solatium @ 30% on the market value and interest @ 9% per annum for the year (1st year) after acquisition and @ 15% per annum for the subsequent years till the payment on the excess amount of compensation. The entire compensation along with interest was directed to be paid within four months from the date of the order. Being aggrieved by this judgment involving Section 18 of the Land Acquisition Act, the appellant preferred the present Appeal. 3. Assailing the judgment on the ground of grant of lower compensation, the appellant contested the judgment on the premises that the impugned judgment/award has been passed without application of judicial mind, the judgment also remained erroneous and against the materials available on record. The judgment is also assailed on the premises of being passed without giving any cogent reason in assessment of market value. The judgment is also assailed on the premises of being passed without giving any cogent reason in assessment of market value. It is also contended that the land was acquired along a building constructed by his grandfather for the purpose of spinning industry comprising 7000 sqft., which is being enjoyed by the Government as medical building from the year 1961 and has been demolished in the year 2008 considering it to be an old structure and there is no payment of consideration on this head. The appellant also contended that there has been no proper consideration on the aspect of nature, situation, advantage and potentiality of the land while assessing the market value. It is also alleged that there has been grant of compensation less than the market value and there is also non-consideration of the registered sale deed dated 1.3.2013 by the court below. Further there has been no proper consideration of the working sheet filed as Ext.A referring to solitary transaction taken place, vide registered sale deed dated 15.4.2011. Learned senior counsel for the appellant, Sri Asok Mohanty advancing his argument involving the appeal confined his submission involving the impugned judgment on non-consideration of the compensation involving the house standing over the disputed area at the time of demolition as well as acquisition. In substantiating his submission, Sri Asok Mohanty, learned senior counsel for the appellant taking this Court to the materials available from the pleadings involving the claim application, the document, vide Ext.3 as well as Ext.5 submitted that there cannot be any denial on the existence of a building at the time of demolition on the acquisition of the disputed land. It is in this view of the matter, Sri Mohanty contended that the appellant was bound to be entitled to compensation on the head of the building and compound wall existed thereon. Further taking this Court to the Record of Rights, Sri Mohanty, learned senior counsel for the appellant submitted that for the status of the land to be Gharabari Dui and for the evidence of the sole witness on behalf of the respondent herein and further for the materials available through the evidence of other witnesses, there is reason in refusing grant of compensation on the premises of the existing building. For the appellant confining his submission on the compensation on the head of existing building, this Court proceeds accordingly. 4. For the appellant confining his submission on the compensation on the head of existing building, this Court proceeds accordingly. 4. From the record of the lower court particularly from the petition under Section 18 of the Land Acquisition Act, vide L.A.Case No.1/2011, this Court finds, so far as the claim on the building standing over the disputed property concerned, the appellant claiming in paragraphs-4 & 7 has pleaded as follows :- "4. That, the classification of the land acquired by the Collector-cum-L.A.O., Nuapada was Ghara Bari Dui kissam having houses and compound wall over the plot constructed by the Grandfather of the petitioner which has not been taken into consideration while evaluating and determining the value of the land. 7. That, the Collector-cum-L.A.O., Nuapada has not properly conducted the survey and inquiry of the schedule of land while acquiring the same since they have not made any local inquiry, inspection of the ground and verification of the records and papers along with the local cess." In filing the affidavit under Order 18 Rule 4 of C.P.C. in paragraph-8 therein has stated as follows :- "8. That, the classification of the land acquired by the Collector-cum-L.A.O., Nuapada was Ghara Bari Due kissam having residential houses to the plinth area of 7000 sq.ft. compound wall over the entire plot constructed by my Grandfather which has not been taken into consideration while evaluating and determining the value of the land." To this evidence on affidavit of the appellant in the cross-examination of the appellant by the respondent therein, paragraphs-14 & 16 reveal as follows :- "14. I am not the recorded tenant of case. Since the year 1961 Veterinary Office is functioning on case land. I was doing the job of Revenue Inspector and retired now. Written objection was given to Collector by the recorded tenant in the year 1988 in connection with the case land. The sale deeds filed by the Revenue executed in the year 2013. The case land was notified in the year 1998. I have not filed any document to show valuation of case land in the year 1998. 16. Now the Veterinary Office is not functioning on case land and the said office has been shifted to other place in the year 2005. Now the Government has not made any further construction over the case land. I have not filed any document to show valuation of case land in the year 1998. 16. Now the Veterinary Office is not functioning on case land and the said office has been shifted to other place in the year 2005. Now the Government has not made any further construction over the case land. The houses standing on the case land were demolished and the land is lying vacant now. Rudra Meher, who is my paternal uncle of the recorded tenant of the case land. Now Sinapali Hospital is functioning on other place in the Mouza-Sardhapur. Government is in possession over the case land since lang. Rupees ninety lakh was paid for acquisition of the case land including the income tax. In the year 1998 there was first notification issued under Section 4 of L.A. Act. Again in the year 2011 another notification for acquisition of the case land was published." This Court on further perusal of the further evidence on affidavit of other witness, Sabyasachi Meher in paragraph-7 has made a categoric statement that the acquired land of the appellant was used by the Health Department for the purpose of Sinapali Health Centre and in paragraph-8, he has again stated that 7000 sqft. of plinth area of building with compound wall was available over the entire plot, which was acquired by the Family & Health Department, Government of Orissa. Same is also the statement of one Bairagi Meher as well as Abdul Razak Bahi, the other witnesses. Looking to the evidence of the sole witness on behalf of the respondent herein, this Court finds, there is no whisper on the existing of the building or not over the disputed land. On the other hand, in the cross-examination, this witness appearing on behalf of the State in paragraph-13 stated as follows :- "13. As pucca house and boundary were available on case land, the kisam has been mentioned in the settlement as "Pucca Ghara and Gharabari Maya Hata". 5. It is for the clear statement available on the existing of the building and use thereof by Government itself, this Court is of the clear opinion that the appellant, i.e. the claimant involved herein is entitled to compensation on the building head. 5. It is for the clear statement available on the existing of the building and use thereof by Government itself, this Court is of the clear opinion that the appellant, i.e. the claimant involved herein is entitled to compensation on the building head. Perusing the impugned judgment, this Court finds, despite such clear pleading there was even no issue on the question of entitlement of compensation, if any, on account of building existed over the disputed property by the trial court. In the circumstance, this Court while accepting the claim of the appellant on the head of building standing over the disputed property and while observing that there is sufficient material establishing existence of a building over the disputed property but for no consideration of such issue by the trial court feels it appropriate to remit the matter back to the trial court for framing appropriate issue particularly on the scope of entitlement of compensation involving the building as well as compound wall, if any, standing over the disputed property and to take decision on the same after providing opportunity of hearing to both sides but confining to materials and evidence already available on record. Decision on this score be taken within four months from today. Parties herein shall appear in the trial court within two weeks hence. The Land Acquisition Appeal succeeds but to the extent indicated herein above. No cost.