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Gouri Shankar Kaur and ors. Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberFirst Appeal Nos. 134 and 150 of 1973
Judge
Reported inAIR1984Ori88
ActsLand Acquisition Act, 1894 - Sections 23; Evidence Act, 1872 - Sections 90
AppellantGouri Shankar Kaur and ors.
RespondentState of Orissa
Appellant AdvocateR.N. Sinha and ;S.N. Sinha, Advs.
Respondent AdvocateG. Rath, Adv. General
Excerpt:
.....25,000/-,rs. as regards the claim of compensation for the building, well and two mundas, the learned subordinate judge held that no reference had been made by the collector and therefore, no claim could be made in respect of these items. sinha that the learned subordinate judge went wrong in discarding the oral and documentary evidence on behalf of the claimants and wrongly held that the reference did not cover the building, the well and the two mimdas. as has been submitted at the bar by the learned counsel for both the sides, the matter has to be remitted to the learned subordinate judge for valuation of the house, the well and the mundas. no explanation worthy of acceptance has been offered to show what was the exceptional circumstances which necessitated for execution of such..........officer keeping in mind the market value then prevalent in the area. at the hearing before the learned subordinate judge, sambalpur, both the sides led oral and documentary evidence. as regards the claim of compensation for the building, well and two mundas, the learned subordinate judge held that no reference had been made by the collector and therefore, no claim could be made in respect of these items. the learned subordinate judge did not place reliance on the sale deeds put in evidence by both the sides for the reasons recorded in the award, discarded the evidence from the side of the claimants that improvements had been made on the land as per ext. 15, an agreement and ext. 16, an account of expenditure, which documents were more than thirty years old and relying on some awards.....
Judgment:

Behera, J.

1. By a notification under Section 4(1) of the Land Acquisition Act (for short, 'the Act') dt. January 23, 1964, 453.25 acres of land of village Kalamati in the district of Sambalpur including 26.37 acres of land belonging to the claimants were acquired for having a State Livestock Breeding Farm. The Land Acquisition Officer fixed the compensation amount for the land at Rs. 7,056.19 paise and Rs. 26.78 paise for six trees standing thereon, totalling an amount of Rs. 7,118.97(?) paise. Being dissatisfied with the quantum of compensation, the claimants made higher claims for which the Collector made a reference under Section 18 of the Act. The claimants wanted compensation to be paid at an average rate of Rs. 10.000/- per acre for 20.26 acres of land and at the rate of Rs. 12,000/- per acre for remaining 6.11 acres of land on which a pucca house had been constructed. For the house, twenty trees, a well and two Mundas on the acquired land, the petitioners claimed compensation of Rupees 25,000/-, Rs. 2,000/-, Rs. 3,000/- and Rs. 3,000/- respectively. Besides, 30 per cent of the value had been claimed towards the potential value of the land which was said to be rapidly developing to be an industrial area and was very close to the Hirakud Dam, Chiplima Subsidiary Dam, Burla town, the Hirakud Railway Station, the Bombay-Calcutta National Highway and the Sambalpur University. In addition, interest at the rate of 6 per cent and 15 per cent towards additional compensation for compulsory acquisition was also claimed. According to the State Government, the claims made were highly imaginary and compensation had rightly been awarded by the Land Acquisition Officer keeping in mind the market value then prevalent in the area. At the hearing before the learned Subordinate Judge, Sambalpur, both the sides led oral and documentary evidence. As regards the claim of compensation for the building, well and two Mundas, the learned Subordinate Judge held that no reference had been made by the Collector and therefore, no claim could be made in respect of these items. The learned Subordinate Judge did not place reliance on the sale deeds put in evidence by both the sides for the reasons recorded in the award, discarded the evidence from the side of the claimants that improvements had been made on the land as per Ext. 15, an agreement and Ext. 16, an account of expenditure, which documents were more than thirty years old and relying on some awards passed by the court in respect of lands in the same locality, the learned Judge fixed the amount of compensation as noted above.

2. The claimants, who are the appellants in First Appeal No. 134 of 1973, have challenged the award on the grounds that the compensation fixed for the acquisition of the land is too low and that the learned Subordinate Judge ought to have relied on the accounts (Ext. 16) produced by them in support of their claim that vast improvements had been made thereon. It has also been contended by Mr. Sinha that the learned Subordinate Judge went wrong in discarding the oral and documentary evidence on behalf of the claimants and wrongly held that the reference did not cover the building, the well and the two Mimdas. The State is in appeal against the award in First Appeal No. 150 of 1973 and the learned Advocate-General has submitted that the compensation awarded by the learned Subordinate Judge is on the higher side. He has, however, fairly submitted that the learned Subordinate Judge was not correct in holding that' the reference did not cover the three items referred to above. As has been submitted at the Bar by the learned counsel for both the sides, the matter has to be remitted to the learned Subordinate Judge for valuation of the house, the well and the Mundas. To this extent, therefore, the appeal preferred by the claimants has to be allowed. It is next to be seen as to whether the amount of compensation awarded by the learned Subordinate Judge in respect of the land has been high as contended by the State or low as submitted on behalf of the claimants.

3. It has strenuously been urged by Mr. Sinha for the claimants that the varieties of lands have undergone vast changes by improvements made thereto and the learned Subordinate Judge went wrong in relying upon the entries made in the Hamid Settlement in 1936 with regard to the varieties of the lands. We see no force in this contention for the reasons to follow.

4. To substantiate his contention in this regard, Mr. Sinha has heavily placed reliance on Exts. 15 and 16, the agreement said to have been entered into for improvement of the lands and the accounts maintained with regard to the expenditure to improve the said lands and also on the evidence of P. W. 6, one of the claimants and that of P. Ws. 4 and 5. For the reasons recorded by the learned Subordinate Judge in para 13 of the judgment, he rightly did not place reliance on the evidence of P. Ws. 4 and 5 in this regard. Dealing with the genuineness and the evidentiary value of Exts. 15 and 16, the learned Subordinate Judge observed and held:

'P. W. 6 claims to have improved the lands by digging and removing earth and in support of his oral testimony, has proved an agreement (Ext. 15) and account book (Ext. 16) which arc said to be documents of more than 30 years old. No explanation worthy of acceptance has been offered to show what was the exceptional circumstances which necessitated for execution of such an agreement and for maintenance of such an account book. Further, there appears no convincing ground why such documents if at all were in existence, had been kept reserved so long when they had outlived their utility.

The rule of presumption as laid u/s. 90 of the Evidence Act must be applied with great caution and care and ancient documents which are unsupported by any evidence, that might free them from the suspicion of being fabricated, should not be acted upon. The genuineness of a document is a question of fact though its admissibility is a question of law. Exts. 15 and 16 appear to be documents of suspicious character and cannot be accepted with impunity. As to the existence of 200 trees at the time of acquisition, there is no dependable evidence, P. W. 7 was not present when the trees were planted nor able to give any account as to what happened to other 200 trees, the total number of trees being planted by his father were 400. He is not able to show what varieties of trees were standing on the acquired land. Though the account of the planting of trees (Ext. 33) has been kept so long, it is strange enough that no account is maintained for the sale of the fruits of those trees. Ext. 32 does not appear to be a document free from suspicion and can be, accepted as a reliable piece of evidence about the existence of 200 trees on the acquired land.''

5. It has been submitted before us that reliance should have been placed on Exts, 15 and 16 which are documents more than 30 years old in view of the provision contained in Section 90 of the Evidence Act which reads:

'Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document. Which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to be executed and attested.

Explanation.--Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.

This explanation applies also to Section 81.'

This section does away with the strict rules of proof enforceable in the case of private documents by giving rise to a presumption of genuineness with regard to documents more than thirty years old. The rule is founded on necessity and convenience as it is extremely difficult and sometimes impossible to prove the handwriting or singature or execution of ancient documents after a lapse of many years. Although such documents are rendered admissible without proof, if produced from proper custody, the credit to be given to them depends on the discretion of the court and the circumstances of each case. The presumption is permissive and it is a matter of judicial discretion whether the court would make the presumption or call upon the party to offer other proof. Section 90 lays down that the court may presume that documents purported to be thirty years old are genuine and not that it must presume them to be so. The presumption relates to the signature, execution or attestation of a document, that is, to its genuineness. But it does not involve any presumption of correctness of every statement in it which may contain narrative of past events or that the contents of the documents are true or it has been acted upon. That must be proved like any other fact.

6. The learned Subordinate Judge, in our view, has given clear and cogent reasons as to why he has not relied on1 Exts. 15 and 16. As has rightly been submitted by the learned Advocate-General, none of the labourers recorded to have been engaged as per Ext. 16 for the improvement of the land had been examined as a witness for the claimants. A person maintaining accounts of expenditure is also ordinarily supposed to maintain the accounts relating to the income. If there had been improvements to the land, the income must have increased which could be shown from accounts maintained in that regard. No accounts of income, if any, had been brought on the record and admitted in evidence. The learned Subordinate Judge has rightly not acted upon the contents of Exts. 15 and 16.

7. While judging the valuation of the land, the learned Subordinate Judge has kept in mind the well-settled principles of law recorded by Mm in para 9 of the award. For good reasons, he has not relied on the sale deeds produced by either side and has not relied on the oral evidence adduced from the side of the claimants with regard to the valuation of the land. Relying on the oral evidence from the other side coupled with Ext. C/6 showing that the Land Acquisition Officer had visited the spot after the Revenue Inspector submitted Ms report, the learned Subordinate Judge rightly came to the conclusion that there had been proper classification of the acquired land. Taking into consideration some awards passed by the same court, the learned Subordinate Judge valued the land thus:

'On the basis of the two awards Ext. 37 (F) and 37 (G) and also on other awards Exts. 37 to 37 (E) and Ext. 37 (h) J would fix the value of the 'Att' land (21.40 acres) @ Rs. 2,000/- per acre, 'Mal' land (0.75 acres) @ Rs. 3,000/- per acre, 'Berna' land (2.14 acres) @ Rs. 4,000/-per acre and 'Bahel' land (2.08 acres) @ 5,000/- per acre. The rate of compensation for the trees being reasonable, it does not require any change.'

8. At the hearing of these appeals, the learned Advocate-General has invited our attention to some recent decisions of this Court in First Appeals Nos. 144, 148, 162* and 218 of 1972 (all decided on August 1, 1983) with regard to the valuation of the lands of the same village Kalamati acquired for the same purpose. The amount of compensation at the rate of Rs. 2,000/- per acre of 'Att' land, Rs. 3,000/- per acre of 'Mal' land and Rs. 4,000/- per acre of 'Berhan' land has been accepted in those First Appeals. In the instant case, compensation has been assessed on the same valuation in respect of 'Att'. 'Mal' and 'Berhan' lands and for 2.08 acres of 'Bahel' lands valuation has been fixed at Rs. 5,000/- per acre. The compensation for the trees by the Land Acquisition Officer has been accepted to be reasonable. No separate compensation has been awarded towards potential value which, according to the learned Subordinate Judge, has been included while valuing the land. Additional compensation at the rate of 15 per cent and interest at the rate of 6 per cent from the date of taking over possession have also been allowed. We see no justifiable reason to take a different view. In view of what has been stated above, the contention on behalf of the claimants that the valuation has been low and the contention raised by the learned Advocate-General that the valuation has been on the higher side cannot be accepted and in our view, the learned Subordinate Judge has properly assessed the compensation amount in respect of the land.

9. In the result, First Appeal No. 134 of 1973 is allowed in part. While accepting the valuation in respect of the land, we would remit the matter to the court of the learned Subordinate Judge for assessing the valuation of the building, the well and the two Mundas. First Appeal No. 150 of 1973 is dismissed. In the circumstances of the case, we make no order as to the costs of the two appeals.

R.C. Patnaik, J.

10. I agree.


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