State of Orissa vs Brindaban Sharma

S.C. Mohapatra, J.—These two appeals u/s 54 of the Land Acquisition Act, 1894 (hereinafter referred to as ''the Act'') arise out, of two references made u/s 18 of the Act filed by State of Orissa. No cross-objection has been filed by claimant.

Lands of claimant were acquired on basis of notification u/s 4(1) of the Act published in the year 1962-63 and possession was taken on 31-3-1963. Declaration u/s 6 of the Act was published in Orissa Gazette Extraordinary No. 169 dated 18-2-1967. Land Acquisition Officer made the award u/s 11 of the Act and offered compensation to the respondent @ Rs. 400/-per acre calculating the same on the basis of transactions of similar land in the village on the date of notification u/s 4(1) of the Act as revealed from the award u/s 11 of the Act. Claimant who received compensation under protest sought for a reference to Court to determine market value u/s 18 of the Act since he was demanding higher compensation. On that basis references were made to Court.

Trial Court is required to determine the market value of the land acquired on the date of publication of notification u/s 4(1) of the Act as provided in the first Clause of Section 23 of the Act. In this case, publication of notification u/s 4(1) of the Act was not proved but it was only stated to be in the year 1962-63. It is not disputed that Section 4(1) notification was published in 1962-63. Land Acquisition Officer held that declaration u/s 6 having been published in the year 1967, it would be invalid if it is beyond 3 years of the publication of notification u/s 4(1) of the Act and accordingly, to make the acquisition valid, it treated the publication of notification u/s 4(1) of the Act to have been published in the year 1964. On that basis, it determined the market value of the acquired land at Rs. 400/- per decimal (1 acre - 100 decimals). Aggrieved by the same, these two appeals have been filed. No cross-objection has been filed.

When Court is required to determine market value on the date of publication of notification u/s 4(1) of the Act, there is no scope for the court to find out a deemed date of publication of such notification to make the acquisition valid since Court has no power u/s 18 of the Act to examine validity of acquisition. It has to proceed on the basis that acquisition is valid and it is required under law to determine the market value only and make an award u/s 26 of the Act which shall be deemed to be a decree.

When a reference is made to Court under S, 18 of the Act, Court is required to first find out the date of publication of notification u/s 4(1) of the Act. Land Acquisition Officer while making a reference u/s 19 of the Act is to supply the details of the publication in the official gazette inasmuch as Section 4(1) requires the same to be published in official gazette along with other requirements u/s 19. Where the date of notification u/s 4(1) of the Act is not available from the documents, Court is required to call upon the Land Acquisition Officer to furnish the same. It may also call upon the party at whose instance reference was made to furnish the same. It is not possible for the Court to proceed further in a reference without the date of publication being available to it. In this case, Land Acquisition Officer has mentioned that the notification u/s 4(1) of the Act was published in the year 1962-63. This is not justified.

Entire basis for determination of market value by the trial Court is the deemed date of publication of notification u/s 4(1) of the Act. Accordingly, the terms under which the market value has been determined being wholly wrong, the award has become vulnerable.

u/s 53 of the Act, provisions of the Civil P.C. applied to all proceedings before the Court save in so far as inconsistent with anything contained in this Act. u/s 107 of the Code, appellate Court is to exercise the same power and perform the same duties as of the Courts of original jurisdiction. Thus, appellate Court is to consider the material on record and determine the market value on the date of publication of notification u/s 4(1) of the Act. This would be subject to Order 41, Rules 23, 23-A & 25 of the Code. Where mateials are available on record appellate Court is not to remit the matter back since it is likely to delay the finality of a proceeding which is contrary to the public policy. On the materials on record, claimant-respondent in this case is bound to suffer as he stands in a position of a plaintiff in the suit and onus lies on him to prove that the rate at which compensation was offered is not the correct market value. If I consider the materials only, there is no document of the year 1962-63 produced by the claimant to prove the market value. No other evidence is also available to be accepted for determination of market value. In the circumstances, claimant who has lost his land would also be deprived of proper compensation. This would be too technical approach. Accordingly, this is a fit case where I am to exercise power under Order 41, Rule 23-A since a retrial is necessary for the benefit of the claimant.

Accordingly, impugned awards in both the appeals are set aside and references are remitted back to the trial Court for fresh hearing. Both parties shall be given adequate opportunity to adduce further evidence in support of their cases.

In the result, appeals are allowed. Costs shall abide the result of the references.