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Salil Kumar Ghose Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 42 of 1951
Judge
Reported inAIR1957Ori76; 23(1957)CLT149
ActsLand Acquisition Act, 1894 - Sections 4(1) and 23
AppellantSalil Kumar Ghose
RespondentState of Orissa
Appellant AdvocateL.K. Dasgupta and ;A.K. Tripathy, Advs.
Respondent AdvocateAdv.-General
DispositionAppeal partly allowed
Cases ReferredNarayana Gajapatiraju v. Revenue Divisional Officer
Excerpt:
.....ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - in such a case the arbitrator in determining its value will have no market value to guide him, and he will have to ascertain as best he may from the materials before him, what a willing vendor might reasonably expect to obtain from a willing purchaser, for the land in that particular position and with those particular potentialities......tank at rs. 775/-. the collector valued the arable land at the rate of rs. 156/4/- per acre, the waste land at the rate of rs. 207- per acre and the tank at rs. 11578.in appeal the district judge however enhanced the valuation to rs. 1,99578, valuing the arable land at rs. 300/- per acre and the waste land at rs. 100/- per acre. he however maintained the value of the tank made by the collector. it is to be mentioned that there is no cross-appeal against the decree passed by the district judge. the owner of the land has appealed before us, and has thought it fit to reduce his claim to rs. 7,500/-.2. so far as the agricultural lands are concerned, the appellant relies upon several sale deeds in respect of the lands situate in village balgopalpur where the lands in question are situate.....
Judgment:

Mohapatra, J.

1. This first appeal is against the judgment dated 13th March 1951 of Sri D. N. Das, District Judge of Mayurbhanj, arising out of a reference under Section 18 of the Land Acquisition Act, 1894, against the amount of compensation awarded under Section 11 of the Act by the Land Acquisition Collector. There were two notifications under Section 4(1) of the Act and they were of the dates 23rd December 1947 and 26th June 1948. Under the notifications fifteen acres of land of the present appellant were compulsorily acquired. Out of the 15 acres, 1.90 acres have been made culturable, 13.10 acres are still lying waste & there exists a tank on an area .22 which is included within the aforesaid 15 acres. According to the appellant's version, the land was originally taken by him for business purposes.

Poultry and goat breeding farm and Khala for purchase and sale of paddy and rice were started after putting up some structures and excavating a tank. A portion of the land was converted into arable land for raising fodder for the poultry and goats. The business could not flourish for want of proper management and in course of time the houses collapsed for want of repairs. The appellant had laid his claim at Rs. 15,000/- before the Land Acquisition Collector who however valued the land, in question, along with the tank at Rs. 775/-. The Collector valued the arable land at the rate of Rs. 156/4/- per acre, the waste land at the rate of Rs. 207- per acre and the tank at Rs. 11578.

In appeal the District Judge however enhanced the valuation to Rs. 1,99578, valuing the arable land at Rs. 300/- per acre and the waste land at Rs. 100/- per acre. He however maintained the value of the tank made by the Collector. It is to be mentioned that there is no cross-appeal against the decree passed by the District Judge. The owner of the land has appealed before us, and has thought it fit to reduce his claim to Rs. 7,500/-.

2. So far as the agricultural lands are concerned, the appellant relies upon several sale deeds in respect of the lands situate in village Balgopalpur where the lands in question are situate and of other villages in the locality. Bidhyadharpur and Ganipur etc. The learned District Judge considered all these documents filed by the appellant and has rightly concentrated upon the sale deeds near about the time of the notifications under Section 4(1) for the materials whether the lands conveyed under the sale deeds exhibited on behalf of the appellant are exactly of the same nature as the lands under acquisition.

On a perusal of these documents it appears that most of these Kabalas were in respect of Sthitiban lands which were agricultural lands for a long time. But according to the very case of the appellant the agricultural lands under consideration were made so only recently; but nevertheless the learned District Judge, has on a consideration of some of the documents filed by the appellant, come to the conclusion that the present agricultural lands could reasonably be valued at Rs. 300/- per acre. It appears from Ex. 4 that some of the Chas lands of village Balgopalpur were Bold at Rs. 350/- per acre as some lands of Bidyadharpur were sold for Rs. 300/- as it appears from Ex. 4/b. As this valuation transpires from the documents filed by the appellant himself, we are not inclined to disturb the finding of the learned District Judge and the valuation of the lands made agricultural appears to be a reasonable one as fixed by him.

3. So far as waste lands are concerned, one aspect was argued by Mr. Dasgupta, on behalf of the appellant, that his client is entitled not only to the value of the land in its actual condition at the time of expropriation with all its existing advantages but to all its future possibilities. Indeed advantage due to the Carrying out of the scheme for the purpose for Which the land was acquired are to be excluded. The proposition is indisputable. This principle has been recognised by theirLordships of the Privy Council on many occasions in the case reported in Atmaram Ehagwant v. Collector of Nagpur, AIR 1929 PC 92 (A). Their Lordships observed as follows:

'Now, the proper principles applicable to the case were not in controversy before the Board. An owner of lands, in the position of the appellant, Is entitled, it was agreed, to the value to himself of the property in its actual condition at the time of expropriation with all its then existing advantages and with all its future possibilities, excluding only any advantage due to the carrying out of the scheme for the purposes for which the property was being acquired.'

The proposition was not controverted before their Lordships as it was settled much earlier by their Lordships of the privy Council in the case of Cedars Rapids Manufacturing & Power Co. v. Locoste, 1914 AC 569: (AIR 1914 PC 199) (B). There is no , doubt therefore that the appellant is entitled to the market value of the potentiality of the lands under acquisition. The principle has been more elaborately explained by the same Board in the case of Narayana Gajapatiraju v. Revenue Divisional Officer, Vizagapatam, AIR 1939 PC 98 (C), which is as follows:

'But sometimes it happens that the land to be valued possesses some unusual, and it may be unique features as regards its position or potentialities. In such a case the arbitrator in determining its value will have no market value to guide him, and he will have to ascertain as best he may from the materials before him, what a willing vendor might reasonably expect to obtain from a willing purchaser, for the land in that particular position and with those particular potentialities. For it has been established by numerous authorities that the land is not to be valued merely by reference to use to which it is being put at the time at which its value has to be determined (that time under the Indian Act being the date of the notification under Section 4(1)), but also by reference to the uses to which it is reasonably capable of being put in the future. No authority indeed is required for this proposition. It is a self-evident one.'

The proposition had been by then a self-evident one to their Lordships. The more significant lines which may apply to our case are as follows:

'No one can suppose in the case of land which is certain, or even likely, to be used in the immediate or reasonably near future for building purposes but which at the valuation date is waste land or is being used for agricultural purpose, that the owner, however willing a vendor, will be content to sell the land for its value as waste or agricultural land as the case may be. It is plain that in ascertaining its value, the possibility of its being used for building purposes would have to be taken into account. It is equally plain however that the land must not be valued as though it had already been built upon, a proposition that is embodied in Section 24(5) of the Act and is sometimes expressed by saying that it is the possibilities of the land and not its realized possibilities that must be taken into consideration.'

4. But the more difficult task is how to value the potentialities in the present case. The special position and the features of the land to be acquired in the present case are that such a large area under acquisition is a compact block; it is situate at a distance of nearly ten miles from the town of Balasore and abuts on the road side of the road from Balasore to Remuna. The learned District Judge has also believed P. W. 1's statement that in fact he had put some structures on the land in question for his poultry farm and other business. The structures indeed had fallen down & it leadsto the conclusion that they were not of a permanent nature.

The Government after acquisition, have put some structures for sheltering the refugees. This indicates that the lands in question, without any further improvement being made on them, may reasonably be used for putting structures thereon. But the important material in this respect which is absent is whether the lands in question can bear the burden straightaway without any further improvement of permanent structures of substantial nature. Indeed if the material would have been there, the valuation must be more than the valuation of the agricultural lands.

Moreover, there is no material that the entire area of the waste land in question could be converted into any temporary structures even by the appellant within a reasonable time. In spite of this lacuna and defect, on account of compactness of the area and that the lands abut on the roadside and further that temporary structures could be put on some portions of them, we are of the view that the valuation of the waste land at Rs. 100/- per acre as fixed by the learned District Judge is low and we may reasonably fix it at Rs. 200/- per acre.

5. There remains the tank situate on an area 22 with the dimensions of 110 ft. in length, 100 ft. in width and 9ft. in depth to be valued. According to the appellant's version, it was excavated merely 15 years ago and he lays his claim at Rs, 1530/-. In support of his case he has examined one witness Kshetramohan Pundit (P. W. 2) an estimator of District Board's Office. He says :

'The cost of the tank at pre-war rate would have been Rs. 437/-. In 1947-48 the cost would be Rs. 1530/- according to P. W. D and D. B. rate. Then the increase was Rs. 250/- per cent.'

The learned District Judge has not accepted the evidence of this witness as he did not produce any paper regarding the District Board rates. The present cost, as said by this witness, seems to be exaggerated. The learned District Judge, in our opinion, has gone wrong in confirming the estimate of the Collector basing his finding on the evidence of one Daitari Prasad Das, a clerk in the Loan's Office (Grow More Food Campaign).

The rates given by this witness examined on behalf of the State are the standard rates of the Grow More Food Department in advancing loans. In our opinion, this can never serve the basis for estimating the actual cost of excavation of the tank in question in the pertinent years 1947-48. A man of the public works department should have been examined on behalf of the State to throw light on the subject of actual cost of excavation of a tank of this nature. In the absence of such material, even though it is difficult to fix the compensation, we feel inclined to find that Rs. 400 would be the reasonable compensation for the tank, particularly when we have already given compensation to the appellant in respect of the base of the tank at the rate of Rs. 200/- per acre.

6. In conclusion, therefore, the appeal is allowed in part. The appellant is entitled to total compensation of Rs. 3,590/- (three thousand five hundred and ninety rupees) (Rs. 570/- for 1.90 acres of arable land at the rate of Rs. 300/- per acre, plus Rs. 2,620/- for 13.10 acres of waste land at the rate of Rs. 200/- per acre, plus Rs. 400/- for the tank). There will be no order as to costs of this Court.

Balakrishnarao, J.

7. I agree.


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