Lalan Prasad vs State Of Chhattisgarh

This appeal has been preferred by the Appellant-Lalan Prasad under Section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act, 1894) questioning the legality and propriety of the order/award dated 29.11.2008 passed in Misc. Civil Suit No.159/2008 by the Additional District Judge, Sakti, District Janjgir-Champa (henceforth, the Reference Court) whereby the Reference Petition has been allowed in part.

Briefly stated the facts of the case are that the Appellant's land bearing Kh.No.1161/1 admeasuring 0.76 acres situated at village Sapos, Tahsil Dabhra, District Janjgir-Champa has been acquired for the construction of canal known as “Kosmanda Jalashay”. According to the Appellant, the possession of his alleged land was taken by the Respondent Authorities under the garb of said purpose in the year 1972-73 itself, and therefore, entitled to be awarded proper amount of compensation as provided under Sections 23 & 34 of the Act, 1894. It is stated further that while determining the amount of compensation, the Land Acquisition Officer ought to have determined the amount of compensation regarding a Kachcha house, well and trees, which are situated on his alleged land. Having failed to determine the amount of compensation in its proper manner as required under the Act, 1894, the awarded amount as determined by the Land Acquisition Officer vide its award dated 25.03.2004 (Ex.D-4) and that by its supplementary award dated 31.12.2004 (Ex.D-2) is, therefore, liable to be modified accordingly.

While contesting the aforesaid petition, it is stated by the Respondent Authorities that just and fair compensation payable to the Appellant has been awarded, therefore, the Reference Petition is liable to be rejected.

After considering the evidence led by the parties, it was found by the Reference Court, based upon the Khasra Panchshala (Ex.P.3) for the year 1974-75 upto 1977-78 that a Kachcha house, well and trees are there in the alleged acquired land of the Appellant, for which, he is entitled to be compensated. It observed further that since the Appellant has failed to produce any cogent and reliable evidence regarding valuation of the Kachcha house, therefore, the Appellant was held to be entitled a lump-sum amount of Rs.5,000/- in this regard and for rest, i.e., well and trees, he was entitled to be compensated as per the market value as provided in the guidelines for the year 2001-02. While entertaining the issue No.1, it was held that the Appellant's alleged acquired land is “unirrigated Kanhar land” and as per the said guidelines, he is entitled to get the amount of compensation for his alleged acquired land at the rate of Rs.2,50,500/- per hectare. It held further that for want of any documentary evidence, it cannot be said, based upon his mere oral evidence, that the possession of the alleged acquired land was taken by the Respondent Authorities in the year 1972-73, as alleged by him. In consequence, the Reference Petition has been allowed in part in following terms as mentioned at para 12 of the award under appeal, which reads as under :-

Being aggrieved with the aforesaid award, the instant appeal has been preferred by the Appellant.

Learned counsel appearing for the Appellant submits that the findings of the Reference Court holding that the possession of the Appellant's alleged land was not taken by the Respondent Authorities in the year 1972-73 under the garb of construction of said canal is apparently contrary to law. While referring to para 8 of the award impugned, it is contended further that merely based upon the presumption, the amount of compensation with regard to the Kachcha house has been assessed only to the extent of Rs.5,000/-. The approach of the Reference Court is, therefore, not sustainable and liable to be interfered in this appeal.

On the other hand, learned Government Advocate appearing for the respondents/State has supported the award impugned as passed by the Reference Court.

I have heard learned counsel appearing for the parties and perused the entire record carefully.

From perusal of the record, it appears that for the construction of “Kosmanda Jalashay”, the land in question bearing Kh.No.1161/1 admeasuring 0.76 acres owned by the Appellant situated at village Sapos, Tahsil Dabhra, District Janjgir-Champa (C.G.) has been acquired in Land Acquisition Case No.1/A-82/1999-2000. According to the Appellant, possession of it was taken by the Respondent Authorities in the year 1972-73 itself even prior to the passing of the award in the said proceedings, therefore, he is entitled to be compensated along with its interest in view of the provisions prescribed under Sections 23 & 34 of the Act, 1894. Further contention of the Appellant is that the valuation of Kachcha house as assessed lump-sum only to the extent of Rs.5,000/- is liable to be enhanced suitably based upon the unrebutted evidence led by the Appellant.

It, however, appears from perusal of the record that the Court below in absence of any evidence being led by the Appellant, the valuation of Kachcha house has rightly been held to the lump-sum amount of Rs.5,000/- and, I do not find any infirmity in the same so as to call for any interference in this regard.

In so far as the findings recorded by the Court below in relation to issues 5 and 7, holding that the Appellant has failed to establish the fact that the possession of his alleged land was not taken in the year 1972-73, are concerned, the same are, however, liable to be set aside in view of the evidence led by the parties. According to the Appellant, who was examined as A.W.1, the possession of his alleged land, i.e., Kh.No.1161/1 admeasuring 0.76 acres was taken by the Respondent Authorities for the construction of the alleged canal in the year 1972-73 itself. In support, he placed the map, marked as Ex.A-2 showing the total land utilized for the construction of the alleged canal. It was prepared on 10.01.1972 and certified copy of it was issued by the Sub-Divisional Officer of Water Resources Department, Dabhra, District Janjgir-Champa. The said map (Ex.A-2) was duly corroborated by the concerned Patwari of village Sapos, namely, Ashok Kumar Sharma (A.W-3) who has certified the same based upon its original map and deposed further that the alleged canal was constructed on the Appellant's alleged land. The said map (Ex.A-2) was, however, appears to be a proposed map showing the description of entire lands which are to be used for the construction of said canal. Therefore, it cannot be said based upon it that the possession of the Appellant's alleged land was taken on 10.01.1972 or in the year 1972-73 as claimed in the Reference Petition. Kaushal Singh (A.W-2), who was an agriculturist and whose land was adjacent to the Appellant's alleged land, has deposed that for the construction of alleged canal, the Appellant's land has also been utilized for the said purpose in the year 1972-73. However, merely based upon his oral evidence, it cannot be held that the Appellant's land was utilized for the said purpose in the year 1972-73. Now, the statement of Appellant's another witness, namely, R.S.Garg in this regard is to be seen, who was the Sub-Divisional Officer in Irrigation Department and was examined as A.W-4. According to him, the alleged land owned by Appellant was utilized for the said purpose in the year 1974. The evidence so recorded by the Appellant has not been controverted by the respondents as Motilal Sidar (N.A.W-1), who was the Sub-Divisional Officer at Dabhra was, however, unable to state that whether the Appellant's alleged land was utilized in the year 1973-74 or not when a specific question was put to him in this regard. It, thus, appears that upto 1973, the Appellant's alleged land was not utilized else no specific question as such would have been put to him in his cross-examination. Be that as it may, none of the parties have stated that what was the specific date when the possession of Appellant's alleged land was taken for the said purpose. It is, however, to be noted here that the notification for acquisition of the land for the construction of the said canal was issued on 06.01.2002, whereas the map (Ex.A.2) showing the description of the entire land utilized for the said purpose was made on 10.01.1972. The notification for acquisition of land has, thus, appears to have been issued much after the preparation of the said map, i.e., approximately for over more than 30 years. However, no explanation whatsoever has been offered by the Respondent Authorities as to why the notification was issued much after the preparation of the said map (Ex.A.2), though it was well in their personal knowledge. Non-discloser with regard to the alleged known fact by the Respondent Authorities would thus lead to an irresistible conclusion that even prior to issuance of the notification for the acquisition of the alleged land, the possession of it was taken by the Respondent Authorities and utilized the same for the construction of alleged canal. In view thereof and that by considering the statement of Mr. R.S.Garg (A.W-4) examined by the Appellant, it, thus, can be inferred that possession of his land was taken in 1974 and by applying the principles of probability, it can be held to be taken on 01.01.1974.

Pertinently to be noted here further that at the time of issuance of said notification, the name of the Appellant and/or predeceased-in-interest of him was shown to be recorded in revenue papers and since the alleged land of the Appellant was acquired vide award dated 31.12.2004 (Ex.D.4) despite taking possession of it even prior to issuance of said notification, as found herein above, therefore, there was no occasion for correction of the revenue papers at that time. In view thereof, the land admeasuring 0.76 acres of his land has, thus, appears to have been held to be as the surplus land in ceiling proceedings vide order dated 09.03.1976 (Ex.A-15) passed by the competent Authority, i.e., Sub-Divisional Officer, Sakti in Revenue Case No. 74/A-90 (B)/1974-75. It is to be noted at this juncture that if the land in question utilized for the construction of alleged canal would have been acquired in time, the name of the Appellant would not have been shown in revenue papers and the excess land of him as such would certainly not have been held to be as the surplus land under the said order (Ex.A-15).

Since the Appellant's alleged land was still shown to be recorded in his name in revenue papers despite taking of its possession prior to passing of the said award, therefore, it appears that propriety of the said order dated 09.03.1976 passed in the said ceiling proceedings declaring his alleged land as a surplus one was not questioned by him. In view thereof, merely on the ground that the propriety of it has not been questioned by him in appeal would not by itself be sufficient to hold that the possession of Appellant's alleged land was not taken as the possession of it was found to be taken even much prior to the issuance of said notification for initiation of the said acquisition proceedings, as observed herein above. The effect for non-filing an appeal against the said order passed in the ceiling proceedings would be that the Appellant at the most in such circumstances cannot say that his alleged land has wrongly been held to be a surplus one owing to its finality by efflux of time.

What is, therefore, reflected from the materials available on record that the Appellant has in fact suffered twice in this regard as the possession of his alleged land in question was not only taken by the Respondent Authorities for the construction of the alleged canal, but the other of his land of same area was held to be the surplus land vide order dated 09.03.1976 (Ex.A-15). It thus appears that the Respondent Authorities while utilizing the Appellant's alleged land as such have caused the damage to him by declaring his 0.76 acres of land as a surplus land, else no order as such would have been passed in the said ceiling proceedings.

In view of the aforesaid background, the appeal is allowed in part and the value of the land in question bearing Kh.No.1161/1 admeasuring 0.76 acres has been held to be Rs.77,046/-(Rs.2,50,500/- x 0.76/2.471) as per the market value (i.e. Rs.2,50,500/- per hectare) determined by the Court below under issue No.1. The Appellant is thus held to be entitled to Rs.77,046/- towards the amount of compensation in lieu of acquisition of his alleged land even prior to passing of the supplementary award by the Land Acquisition Officer on 31.12.2004 (Ex.D-2). In addition, the Appellant is also awarded amount equivalent to 12% of it per annum for the period commencing with effect from 01.01.1974 till 31.12.2004 when the supplementary award was passed. The Appellant is further entitled for 30% of the amount awarded to him under Section 23 (1) and 23 (1-A) in terms of Section 23 (2) of the Act, 1894. The Appellant is also entitled for interest @ 15% per annum from 01.01.1974 till its realization as per the provision prescribed under proviso to Section 34 of the Act, 1894. Rest of the decree as passed by the Reference Court at para 12 of its order impugned shall remain intact and shall also be the part of the decree of this judgment.

The Respondent Authorities shall pay the above amount and proportionate interest to the Appellant after adjusting the amount already paid to him. No order as to costs.

A decree be drawn accordingly.