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Collector, Cuttack Vs. Rajib Bhol - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 70 of 1967
Judge
Reported inAIR1972Ori200; 37(1971)CLT348
ActsEvidence Act - Sections 65 and 66; Land Acquisition Act, 1894 - Sections 23(1)
AppellantCollector, Cuttack
RespondentRajib Bhol
Appellant AdvocateStanding Counsel
Respondent AdvocateK.C. Mohanty, Adv.
DispositionAppeal allowed
Cases Referred(Dula Dei v. Jati Bewa) The
Excerpt:
.....refusing to consider these exhibits. having thus doubted their varacity, there was practically no other reliable evidence to enable the court below to fix the market value at rs......in the impugned order the date of acquisition has been erroneously mentioned as 5-9-1963, the land acquisition officer awarded a total compensation of rupees 816.10 fixing the value of the acquired land at rs. 709.65 and additional compensation by way of solatium at rs. 106.45. the respondent claimed rs. 5,000/- per acre towards the value of the acquired land, rs. 3,000/- towards the value of the house and tank alleged to have existed thereon, rs. 5,000/- towards the embankment of the land, rs. 15,000/- as damages for the loss of fishing, besides some amount towards the loss of income from paddy dealers and loss of income from rent. on objection being filed to the adequacy of compensation awarded by the land acquisition officer, a reference was made under section 18 of the act in.....
Judgment:

A. Misra, J.

1. The State is the appellant against an award passed by the Special Judicial Officer at Cuttack performing the functions of a court on a reference under Section 18 of the Land Acquisition Act I of 1894 (thereinafter to be referred to as the Act).

2. A 2.36-51/2 kadis of land situate In village Bhitargarh was acquired in pursuance of a notification issued under Section 4(1) of the Act on 31-10-1961, though in the impugned order the date of acquisition has been erroneously mentioned as 5-9-1963, The Land Acquisition Officer awarded a total compensation of Rupees 816.10 fixing the value of the acquired land at Rs. 709.65 and additional compensation by way of solatium at Rs. 106.45. The respondent claimed Rs. 5,000/- per acre towards the value of the acquired land, Rs. 3,000/- towards the value of the house and tank alleged to have existed thereon, Rs. 5,000/- towards the embankment of the land, Rs. 15,000/- as damages for the loss of fishing, besides some amount towards the loss of income from paddy dealers and loss of income from rent. On objection being filed to the adequacy of compensation awarded by the Land Acquisition Officer, a reference was made under Section 18 of the Act in which the impugned order was passed.

3. 3 witnesses were examined on behalf of the respondent and 3 witnesses on behalf of the State. P. W. 1 is the objector who deposed that he was getting 5 to 6 bharans of paddy per acre annually, besides fish worth Rs. 7,000/-. Rs. 600/-from grazing and Rs. 1,400/- from business men using the acquired land. According to him, the value of the acquired land will be Rs. 5,000/- per acre. P. Ws, 2 and 3, in substance, supported his statement, except that they assessed the income from fish, grazing and from business men using the acquired land at lesser amounts. In addition to the oral evidence, respondent also relied on Ex 1, the award in another land acquisition case of the same village in which compensation was awarded for 10.28.6 kadis of land at the rate of Rs. 2,000/- per acre. O. P. W: 1 is the Revenue Inspector of Paradip Land Acquisition office and he says that he saw the acquired land only in July and September. 1964. O. P. W. 2 prepared the sales statistics (Ex. A) on the basis of information obtained from the Sub-Registrar's office. O. P. W. 3 speaks about service of summons on Hari Moha-patra and Jairam Majhi for production Of the originals of certain sale deeds. In addition, certified copies of three sale deeds marked Exts. D to D/2 were sought to be relied upon by the State to prove the prevailing price of lands in that locality in or about the date of acquisition.

4. The court below held that Ex. A and Exs. D to D/2 are Inadmissible in evidence. It came to the conclusion that Ex. 1 cannot be a basis for determining the value of the acquired land and the evidence of the P. Ws. is exaggerated in respect of the value deposed to by them. At the same time, it fixed the value of the acquired land at Rs. 1,200/- per acre observing as follows:--

'Considering the entire evidence on record, the nature, situation, extent, income and potential value of the acquired land, I am inclined to be of the opinion that the value of the acquired land was Rs. 1,200/- per acre at the time of acquisi-tion'.

The other items of claim made by the respondent have been disallowed. The respondent not having preferred any cross-appeal or cross-obi ection against the order disallowing his claim in respect of other items, that finding has become conclusive. Therefore, the only point for determination in this appeal is whether the finding of the court below about the market value of the acquired land is correct and based on evidence.

5. Learned counsel for appellant assails the impugned order on the following grounds; (1) An initial error has been committed by the court below in assessing the value of the land in question under a mistaken impression that the acquisition was in September, 1963, though under law, the value that prevailed at the date of notification under Section 4(1) should be the criterion; (2) the court below has committed an error in excluding Exs. D to D/2 from Consideration on the ground that they are Inadmissible and (3) having held that Ex. 1 cannot be a basis for determining the value of the acquired land and the evidence of the P. Ws. regarding the value is highly exaggerated, the fixation of the price at Rs. 1,200/- per acre is arbitrary.

6. It is not disputed that in a reference under Section 18 of the Act, the position of the objector is something like (that of a plaintiff in a regular civil suit and the onus rests on him to prove that compensation awarded by the Land Acquisition Officer is incorrect or inadequate. The principles to determine the quantum of compensation are contained In Section 23(1) of the Act The court below in fixing the amount has to take into consideration the prevailing market value of the lands at the date of notification under Section 4(1) and the said market value is to be determined by reference to the price which a willing seller might have reasonably expected for similar property from a willing purchaser.

7. Coming to the first ground of attack, it is not disputed that the notification under Section 4(1) in this case was published on 31-10-1961. but in the impugned order, the date of acquisition is mentioned as 5-9-1963. Though such an error has crept in, the fact remains that neither in the court below nor in the memo of appeal, this aspect was emphasised by either party. There is no evidence and not even a suggestion that in between October. 1961 and September. 1963, there was any appreciable rise in the market price of lands in that locality. Therefore, even though there has been an error in this respect, in my opinion, this by itself is not sufficient to interfere with the order of the court below.

8. The next contention on behalf of the appellant, however, has considerable force. While conceding that the sales statistics (Ex. A) is inadmissible in evidence, learned Counsel for appellant contends that the court below committed an error in declining to take into consideration Exs. D to D/2 which are certified copies of sale deeds in respect of some lands in that locality. Ex. D is dated 17-9-1962 and the land covered under it has been sold at Rs 200/- per acre. Ex. D/l is dated 21-7-1962 and the land covered under it has been sold at Rs. 500/-per acre and Ex. D/2 is dated 2-6-1962 and the land covered under it has been sold at Rs. 300/- per acre. Summonses were issued to witnesses to produce the original of these documents and Ex. C/l is the service report showing that they were refused. The record shows that these certified copies were admitted in evidence and marked as Exs. D to D/2 without any objection. Though these documents were admitted in evidence and marked as exhibits, the court below declined to take them into consideration on the ground that they are not admissible under Section 66 of the Evidence Act. Learned Counsel for appellant con-tends that once these certified copies were admitted in evidence without any objection, it was not open to the court below to hold that they are inadmissible under Section 66 of the Evidence Act on the ground, that there has been no proper service of summons on the witnesses to produce the originals. In the decision reported in AIR 1943 PC 83. (Gopal Das v. Thakurji) it was held:--

'Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record'.

Similarly, in the decision reported in AIR 1964 Andh Pra 53. (Subbarao v. Venkata Rama Rao), it was held:--

'Where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken, at the trial before it is marked as an exhibit and admitted'.

Our High Court has also expressed the same view in the decision reported in AIR 1965 Orissa 113. (Dula Dei v. Jati Bewa) The settled principle of law being that once secondary evidence by way of certified copies of registered documents is admitted without objection and the documents are marked as exhibits, it is not open to the party against whom they are offered in evidence to raise any objection that the proper procedure has not been followed or the proper foundation not laid for admission of such secondary evidence. Therefore, the court below clearly erred in refusing to consider these exhibits.

9. The last ground urged by the appellant is that the value of the acquired land has been arbitrarily fixed at Rupees 1,200/- per acre. The respondent sought to rely on oral evidence of the P. Ws., besides the document (Ex. 1) to prove that the market value of the land was much higher than that awarded by the Land Acquisition Officer. The Court below has held that Ext. 1 cannot be a basis for determining the value of the acquired land in the present case. Excluding Ex. 1 the only other evidence that remains is the oral testimony of P. Ws. 1 to 3. It has been observed that their evidence is exaggerated in respect of the value of the acquired land. Having thus doubted their varacity, there was practically no other reliable evidence to enable the court below to fix the market value at Rs. 1,200/- per acre. While making the general observation above referred to in order to fix the value at Rupees 1,200/- per acre, the court below has not dealt with the nature or situation of the land, the income therefrom nor has it indicated anything about its potential value. In short, as has been urged for appellant, the value has been arbitrarily fixed at Rs. 1,200/- per acre, because the respondent asserted it to be at Rupees 5,000/- per acre, while the Land Acquisition Officer assessed it at about Rs. 300/-per acre. Thus, in this case, the court below has erroneously excluded some evidence adduced on behalf of the State from consideration and fixed the valueof the land in question arbitrarily. Sucha finding cannot be maintained.

10. In the result, the appeal is allowed, the judgment and decree of the court below are set aside and the case is remanded for fresh disposal according to law by recording its findings on a consideration of the evidence adduced before it. Both parties will be at liberty to adduce further evidence, if they so choose, regarding the market value of the acquired land on or about the date of publication of the notification under Section 4(1) of the Act. Costs of the appeal will abide the final result. The case to be disposed of within three months from the date of receipt of the record.


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