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State of Orissa Vs. Sukru Mirdha - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 162 of 1972
Judge
Reported inAIR1984Ori83
ActsLand Acquisition Act, 1894 - Sections 9, 23 and 25(3)
AppellantState of Orissa
RespondentSukru Mirdha
Appellant AdvocateAdv. General
Respondent AdvocateR.N. Sinha, Adv.
DispositionAppeal dismissed
Cases ReferredB) (State of Kerala v. Kocheeppan George).
Excerpt:
.....proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. 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]. - if the court is satisfied that there was no proper service of notice under section 9, it can award a sum in excess of the amount awarded by the land acquisition collector. 6. in the present case the learned subordinate judge held that there was failure on the part of the state government to prove valid service of notice. there is no doubt that he has lodged his claim under section 9 as well as made an application under section 18. he..........market rate. the relevant portion of the objection is in the following terms:'that the petitioner claims compensation at the present market rate of the village or in the neighbouring village or at the high court rate with 15% additional compensation and 6 % interest. petitioner has got trees over the land acquired which is given below.it is, therefore, prayed that necessary correction may be made and assessment may be made accordingly or the case may be referred to civil court for necessary action for which he shall ever pray.'8. the provisions of section 25(3) empower the court to condone the default on the part of the claimant. the discretion conferred on the court is a very wide discretion, but sufficient reason has to be found to condone the default. in the present case the.....
Judgment:

Mohanti, Ag. C.J.

1. This appeal arises out of a reference under Section 18 of the Land Acquisition Act (hereinafter referred to as the Act) .

2. In pursuance of a notification under Section 4 of the Act published on 23-1-1964, an area of 4.70 acres of land of village Kalimati belonging to the respondent was acquired by the State Government for the purpose of construction of the State Live Stock Breeding Farm. The Land Acquisition Collector awarded a sum of Rs. 2,355.97 p. as compensation. The respondent claimed compensation at the rate of Rs. 10,000/- per acre. At his instance, a reference under Section 18 of the Act was made to the Civil Court. Both parties produced oral and documentary evidence in support of their respective contentions. The learned Subordinate Judge did not accept the price paid under the sale deeds produced by either side to be the guiding factor in fixing the market value of the land, but relying upon two previous decisions of his Court awarded compensation at the rate of Rs. 2,000/- per acre for Ata lands, Rs. 3,000/- per acre for Mal lands and Rs. 4,000/- per acre for Berna lands. He also awarded solatium at the rate of 15% and interest at the rate of 6% from the date of delivery of possession till payment. Aggrieved by this decision, the State Government has come up in appeal.

3. It is urged in this appeal that the learned Subordinate Judge went wrong in holding that there was no service of notice under Section 9 of the Act, that he should have relied upon the sale deeds filed on behalf of the appellant and that the previous judgments Exts. l and 2 should not have been relied upon in the absence of evidence that the Ianc?s involved in those decisions were similarly, situated.

4. It was contended on behalf of the appellant before the court below that the respondent not having made a specific claim in his objection filed before the Land Acquisition Officer, he was not entitled to get anything in excess of the amount awarded by the Collector under Section 11 of the Act. Reliance was placed on the provisions of Section 25 of the Act which run as follows :--

'25. (1) Rules as to amount of compensation.-- When the applicant has made a claim to compensation, pursuant to any notice given under Section 9, the amount awarded to him by the Court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under Section 11.

2. When the applicant has refused to make such claim or has omitted without sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded by the Court shall in no case exceed the amount awarded by the Collector.

(3) When the applicant has omitted for a sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded to him by the Court shall not be less than, and may exceed, the amount awarded by the Collector.'

5. The aforesaid provisions make it obligatory on the claimant to make a specific claim for compensation in his claim statement filed in pursuance of the notice issued to him under Section 9 of the Act. Before the provisions of Section 25 can be availed of, it must be proved to the satisfaction of the Court that the claimant made no claim to compensation after service of notice under Section 9. If the provisions of Section 9 are not complied with without sufficient cause, the claimant is debarred from claiming a greater sum than what was awarded by the Land Acquisition Collector. But unless it is proved that there was proper service of notice on the claimant under Section 9(3) of the Act he cannot be debarred under Section 25 to make a claim for higher compensation before the Court on the ground that he had omitted to make such a claim before the Land Acquisition Collector. If the Court is satisfied that there was no proper service of notice under Section 9, it can award a sum in excess of the amount awarded by the Land Acquisition Collector. Thus the onus lies upon the State Government to prove due service of notice on the claimant.

6. In the present case the learned Subordinate Judge held that there was failure on the part of the State Government to prove valid service of notice. It appears, however, that during his evidence in Court the respondent admitted to have received the notice. In para 5 of his deposition he stated --

'I have filed the petition before Land Acquisition Officer on the following day of getting Section 9 notice.'

On a reference to the records it appears that on the back of the notice under Section 9 of the Act, the respondent has given his thumb mark in token of having received the notice.

7. It appears, however, that in his claim statement the respondent claimed compensation according to the prevailing market rate. The relevant portion of the objection is in the following terms:

'That the petitioner claims compensation at the present market rate of the village or in the neighbouring village or at the High Court rate with 15% additional compensation and 6 % interest. Petitioner has got trees over the land acquired which is given below.

It is, therefore, prayed that necessary correction may be made and assessment may be made accordingly or the case may be referred to Civil Court for necessary action for which he shall ever pray.'

8. The provisions of Section 25(3) empower the Court to condone the default on the part of the claimant. The discretion conferred on the Court is a very wide discretion, but sufficient reason has to be found to condone the default. In the present case the respondent is an illiterate person. He is not expected to know the penal consequences of the omission to make a specific claim. There is no doubt that he has lodged his claim under Section 9 as well as made an application under Section 18. He knew that he would be entitled to get only the market value of the land which is to be determined in accordance with the provisions of law besides interest and solatium. In such circumstances he should not be deprived of his right to claim enhanced compensation unless there is proof of deliberate refusal or omission or negligence Or want of good faith on his part. We are fortified in this view by the decisions reported in AIR 1974 Kant 74 (Special Land Acquisition Officer v. Sanagouda Paragouda Patil); AIR 1953 Mad 943, (V.S. Subramania Chettier v. State of Madras); AIR 1966 Andh Pra 15, (K. Subrahmanyamma v. District Welfare Officer, Eluru) and AIR 1981 Ker 137 (FB) (State of Kerala v. Kocheeppan George).

9. No doubt the State Government produced the sale deeds Exts. C to J to show that the prevailing market price of the lands at village Kalimati at the time of acquisition was on the average Rupees 450.00 per acre. But the learned Subordinate Judge did not rely upon these sale deeds as there was lack of evidence to show that the lands covered by those sale deeds were situated in the neighbourhood of the lands acquired and were of the same quality. On a review of the evidence we see no reason to differ from the finding of the learned Subordinate Judge.

10. In assessing the market value of the land, the learned Subordinate Judge relied on two previous decisions of his Court (Exts. 1 and 2) passed in land acquisition reference cases awarding compensation for the lands which had been compulsorily acquired for the same purpose and under the same notification. The learned Advocate-General contended that in the absence of any material to show that the previous decisions relate to lands similarly situated, the learned Subordinate Judge should not have made use of them in assessing the compensation.

11. In the present case, out of the total extent of 4.70 acres, 2 acres are Ata lands, one acre is Mal lands and 1.70 acres are Berna lands.

Ext. 1 is a judgment dated 19-11-1966 in Misc. Case No. 14/48 of 1965 of the Court of the Subordinate Judge, Sambalpur awarding compensation at the rate of Rs. 3,000/- per acre for the Mal lands belonging to one S. Ramaswamy which were acquired for the same public purpose and under the same notification. The claimant who was examined as P. W. 1 stated during his evidence in Court that the lands of S. Ramaswamy are adjacent to his lands.

Ext. 2 is a judgment in Misc. Case No. 40 of 1971 of the Court of the Subordinate Judge, Sambalpur awarding compensation at the rate of Rs. 4,000/-per acre for the Berna lands, The land covered by that judgment belonged to one Michhu Mirdha, The claimant during his evidence has stated that the lands of Michhu Mirdha are in the neighbourhood of his lands.

This Court in First Appeal No. 129 of 1972 disposed of on 27-7-83 (reported in AIR 1984 Orissa 86) confirmed the decision of the learned Subordinate Judge fixing the market value of the lands acquired for the same purpose and under the same notification at the rate of Rs. 3,000/- per acre for Mal lands and Rs. 2,000/- per acre for Ata lands. The lands being comparable, the situation also being the same and all the lands having been acquired under the self-same notification for the same public purpose it seems to us proper that the same rate of compensation should be awarded to the claimant herein as was awarded in the judgments Exts. 1 and 2.

12. There is, therefore, no merit in this appeal and it is accordingly dismissed with costs.

G.B. Patnaik, J.

I agree.


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