B. Panigrahi, J.
1. These appeals filed under section 54 of the Land Acquisition Act were taken up together and have been disposed of under a common judgment/order, since common question of law and fact are involved in the aforesaid cases.
2. The short history of the case is as follows: The State Government had acquired a major chunk of land in Plot Nos. 40, 41, 43, 46, 51 (P) in Khata No. 220 of mauza Bidyadharpur belonging to the claimant-respondents. The Land Acquisition Officer considering the price of those lands and also other relevant factors had fixed valuation at Rs. 14,000/- per acre. He also awarded other statutory benefits as per law. In total Rs. 2,05,800/- was paid to the claimants/respondents. The private respondents/owners even after receiving the said amount preferred objection before the Land Acquisition Collector as a resuft of which he sent those cases to the Civil Court under section 18 of the Land Acquisition Act.
The learned Civil Judge (Senior Division) was, however, inclined to fix the market value of the land at the rate of Rs. 2,25,000/- per acre. Therefore, the State Government being aggrieved by and affected with the award passed by the Civil Judge (Senior Division) preferred these appeals.
3. It has been, inter alia, stated that the learned Civil Judge (Senior Division) had arbitrarily, unreasonably and also whimsically fixed the valuation at Rs. 2,25,000/- per acre only on the basis of a sale deed which was registered just before the Notification published under section 4 of the Land Acquisition Act. It has been further alleged that the said sale deed was designedly and mischievously created showing inflated figures in order to claim higher compensation although the lands could not have been sold for such figures.
It appears that subsequently, two more cases had been disposed of by the same court in L. A. Misc. Case No.7/94 and L. A. Misc. Case No. 5/94 (corresponding to First Appeal Nos. 182/97 and 183/97), where the learned Civil Judge (Senior Division) had fixed the valuation of the land at Rs.62,500/- per acre. It has been claimed by the State as to how the same court adopted two different standards while fixing the valuation of those lands. Therefore under these circumstances, the State Government has claimed to set aside the judgment passed by the learned Civil Judge (Senior Division).
4. The respondent-owners have filed Cross-Objection claiming higher compensation than what was awarded by the learned Civil Judge (Senior Division). It has been stated that the land was acquired for the purpose of Bidanasi Triangular Development Project and for expansion of Cuttack City and protective embankment of village Bidyadharpur. The valuation determined by the trial court was not just and reasonable for the land acquired by the State Government. The quality of the land as described in Brochure (Ext. 5) revealed that the new Cuttack Development Project consisted of planning and building of a new township on about 2000 acres of land at Bidanasi. The triangle is comprised of ten villages, namely Brajabeharipur, Arilo, Bidyadbarpur, Bentakarpara, Tangarhuda, Subarnapur, Ramgarh, Tulsipur (208), Tulsipur (195) and Bidanasi. The Brochure further indicated that the soil being sandy loom could bear the load capacity of ten-storeyed buildings.
It is evident that on the unoccupied land portion of Bidanasi and Tulsipur, it is thickly populated area having bazar, college, Television Centre, et cetera. The village Tulsipur is situated at a distance of three kilometres away, yet this Court in First Appeal No, 12/88 had determined the market price at Rs. 4,00,000/-. If such principle is adopted while calculating the valuation of the acquired land, then the respondent/owners are entitled to much higher amount than what was awarded by the learned Civil Judge (Senior Division). It has been also pressed into service that even in Ext. 1, the sale deed between Anadi Behera and Pitabas Behera, it is indicated that the price for one acre of land is conveyed at Rs.2,25,000/-.
For a portion of land belonging to Orissa University of Agriculture & Technology, the Government had paid Rs. 3,00,000/-pet acre as compensation, In such view of the matter, how could the same Government adopted different standard while determining the valuation of the acquired land belonging to the respondents/owners. It is, therefore, in the aforesaid situation necessary direction be given to the Government for paying higher compensation, at least at the rate of Rs. 3,00,000/- per acre.
5. Certain undisputed facts be noted hereunder : It is found that the State Government had acquired different parcels of land from the erstwhile owners. The following chart will reveal the compensation awarded by the Land Acquisition Collector and valuation ultimately determined by the learned Civil Judge (Senior Division) :-- __________________________________________________________________
Number of F. A Area of land acquired Date of Notification U/S. 4(1) Compensation awarded by Collector. Rate per acre. Valuation fixed by the referal Court.
FA 185/94 7.50 28-7-1983 1,32,923/- 14,000/- 2,25,000/- FA 186/94 2.50 " 54.375/- 12,500/- per acre.
FA 4/95 17.00 " 6,59,585/- 12,500/- for Bagayat. 14,000/- for Pal. " FA 5/95 5.00 " 1,02,900/- 14,000/- "
FA 182/95 10.00 " 2,25,612/- " "
FA 213/96 10.00 " 1,64.640/- " "
FA 280/96 10.00 " 2,05,800/- " "
FA 284/96 5.00 " 82,320/- " "
FA 183/97 10.00 " 2,05,800/- " 62,500/-
per acre out of which deduction of 33.1/3% towards development work shall be made.
FA 182/97 10.00 " 1,64,640/- "
FA 254/98 4.85 16-8-1984 1,05,487/- 12,500/- 35,000/- per acre. __________________________________________________________________
6. The purpose of acquisition was for construction of Flood Protective Embankment-City Protective Embankment. Tbe claimant-owners had relied very much on the deed of conveyance dated 16-5-1983 (Ext. 1). The sale deed related to a neighbouring village, but not relating to the acquired village Bidyadharpur, In this situation, it has, therefore, to be decided whether the same standard or principle has to be applied while determining the just and fair price of the acquired land. In this connection reliance can be placed upon the judgment reported in A.I.R. 1999 Supreme Court 317 (Kanwar Singh and others etc. etc. v. Union of India), wherein it was held
"9. The contention of appellants' counsel that appellants deserved to he awarded the same rate of compensation as it was awarded to the claimants of village Masoodpur and Mahipalpur, in the present facts and circumstances of the case is not tenable. If we go by the compensation awarded to claimants of adjoining village it would not lead to the correct assessment of market value of the land acquired in the village Rangpuri. For example, village 'A' adjoins village 'B', village 'B1 adjoins village 'C' village 'C' adjoins village 'D', so on and so forth and in that process the entire Delhi would be covered. Generally there would be different situation and potentiality of the land situated in two different villages unless it is proved that the situation and potentiality of the land situated in two different villagesfare the same. The High Court in the present case has found that the situation and potentiality of land in village Malikpur Khoi are different than that of village Masoodpur. This finding of the High Court is based on correct appreciation of evidence on record and does not call for interference. Another reason why the High Court declined to rely upon the judgments referred to above was that the sale instances relating to village Malikpur Khoi were available for determining the market value of the land acquired in village Malikpur Khoi and as such there was no need to rely the judgments which related to acquired land of different villages. Yet another reason why the two judgments referred to by learned counsel for appellant cannot be relied upon for assessing the market value of acquired land in village Malikpur Khoi was that R. F. A. No. 567/90 filed by the Union of India relating to the grant of compensation in respect of land in village Masoodpur was dismissed summarily, as the only challenge in the appeal was in respect of grant of interest to the claimants, which matter was already settled by the Supreme Court. In fact, the High Court had adversely commented upon the working of the Land Acquisition Department of Delhi Administration in not challenging the market value of the land acquired in village Masoodpur as assessed by the Additional District Judge, in Regular First Appeals although the Court-fee to that effect was paid. In this connection, it is relevant to reproduce the finding of the High Court, which runs as follows:--
"Before leaving the judgment, we are constrained to make a few observations regarding the working of the Land Acquisition Department in Delhi Administration and contest of these appeals by the counsel for Union of India. Although an appeal filed by the Union of India against the Judgment of the A.D.J. in L.A.C. 186/91 is pending in this Court, this fact was not brought to our notice by the counsel for Union of India, This decision of the A.D.J. in L.A.C. 186/81 has been substantially relied upon by another A.D.J. in L.A.C. 15/81. When the appeal against the said decision of the A.D.J. in L.A.C. 15/81 came before us (R.F.A. 567/90) the only question pressed by the counsel for Union of India was in regard to the payment of interest after the amendment in the Land Acquisition Act in 1984, But when we found that the dismissal of the said appeal by the Division Bench was relied upon in R.F.A. 122/78 Hoshiar Singh v. Union of India, we sent for the file. What is discovered on the file is shocking. The Union of India had purchased scamp worth Rs. 1,19,300/-. Obviously, the intention was to file an appeal against the quantum of compensation awarded by the A.D.J. However the grounds of appeal mostly relate to the payment of interest in terms of the Amending Act of 1984. The appeal memo was drafted by Mr. Gulab Chandra, Advocate, who also appeared before us in R.F.A. 567/90. Since the questions regarding payment of interest after the Amending Act of 1984 are now fully settled by the decisions of the Supreme Court and since that was the only question argued before us by the counsel for the Union of India, the appeal was dismissed by us. We had not noticed at that stage that a stamp of Rs.1,19,300/- was affixed by the Union of India. This only discovered now. The purchase of stamp worth Rs. 1,19,300/- would show that the claim would be over a crore of rupees. The claimants have been benefited because Union of India did not argue the matter on compensation. Apart from the lack of interest and inefficiency in the Land Acquisition matters on behalf of the Land Acquisition Department, these facts raise grave suspicion about the credibility of the working of the said Department. We, therefore, direct that a copy of this judgment be sent to the Lt. Governor for appropriate action.
The judgment of the High Court in R.F. A. No. 567/90 was relied upon in R.F.A. No. 122/78, Hoshiar Singh etc. v. Union of India as there was no sale instance in respect of the land in village Hoshiarpur available for assessing the market value of acquired land in the village Mahipalpur. It may be seen that in both the cases the High Court had no occasion to examine the market value of acquired land in village Masoodpur and Mahipalpur and under such circumstances it is not safe to rely upon two judgments of the High Court for arriving the market value of the land in village Rangpuri,"
On a careful reading of the judgment of the Apex Court, quoted above, we are, however, of the firm opinion that the facts in the above case in pari materia are applicable to these appeals. In the aforesaid case, the claimants had also relied upon the judgments in which compensation was paid for the lands of ad joining village, but the High Court as well as the Supreme Court were not persuaded to take such ground for determining just and reasonable compensation. Merely because the Court in another case awarded compensation at the rate of Rs. 4,00,000/- for the lands situated in Tulsipur, the same standard cannot be applicable to the present case. While determining the fair and reasonable compensation, it has to be borne in mind the potentiality, situation and also advantages available to the lands which were acquired by the State. Admittedly, the lands situated at Tulsipur are three kilometres away from the lands which were acquired by the State Government.
The Brochure (Ext. 5) was published in 1985 and it was much after the acquisition. Cuttack Development Authority in order to attract number of purchasers must have narrated extensively, but that was not available prior to acquiring the land by the State Government. The Cuttack city was prone to flood havoc. It has suffered flood devastation time and again in the past. The State Government in order to protect the city from the oncoming flood erected flood protective embankment to save the city from further catascrophy. When such embankment was erected, some surplus Land belonging to the State was found available and thereafter the State Government must have thought to acquire more lands to make it a comprehensive township. Merely because subsequent development had taken place that will not be a ground to pay higher compensation to the owners. We are not oblivious to the situation that village Bidyadharpur was full of sandy soil and the land owners were not getting any substantial income from those lands.
The trial court relying upon the judgment in First Appeal No. 12/88 (Ext. 2) had determined the valuation at Rs. 2,25,000/-per acre without discussing the evidence available in those appeals in extenso. We find that the trial court has omitted to consider Exts. 2, 3 and 5. Mr. Mohanty, learned Advocate appearing for some of the land-owners invited our attention that it is true that the trial court has omitted to consider Exts. 2, 3 and 5, but if the cases would be again remanded to the trial court, payment of fair and reasonable "compensation would be held up. Therefore, in such situation since all the materials are before this Court, it would be better to discuss those documentary evidence in Exts. 2, 3 and 5 and decide once for all.
Ext. 1 is a deed of conveyance which was executed just two months prior to the Notification under section 4 of the Land Acquisition Act. It was for a small bit of land and therefore, the price mentioned in that document cannot be a determinative factor while fixing fair and reasonable compensation.
The Apex Court in the case of Basant Kumar v. Union of India. (1996) 1 S. C. C. 542 (=1997 (1) L. A. C. C, 17 (S. C) ) had occasion to consider the issue relating to fixation of market value in respect of the lands situated in the same village covered by the same Notification with reference to the value fixed for small extent of land vis-a-vis large extent of land, and held as follows :--
"In this case, it is seen that land is as vast as admeasuring 1669 bigha, 18 biswas of land in the village. So all lands cannot and should not be classified as possessed of same market value. The doctrine of equality in determination and payment of same compensation for all claimants involved in the same notification is not a good principle acceptable for the aforesaid reasons. When both the lands are proved to be possessed of same advantages, features etc., then only equal compensation is permissible."
The said judgment was followed in the Full Bench judgment of Andhra Pradesh High Court, reported in 2000(1) All India Land Acquisition & Compensation Cases 183 (Sub-Collector, L.A.O., Vijayawada v. Koppisetti Appala) in which learned Chief Justice Mr. N. Y. Hanumanthappa was a party. In the Full Bench judgment discussed above, it was also considered whether a judgment which is not inter parties can have any precedence while determining the valuation. In the judgment cited supra ( (1996)1 S.C.C., 542), the Supreme Court has also held that if a judgment is not inter parties and relates to a land situated in a different village, it has no relevance to determine the price of the land. In such situation, we are, therefore, constrained to reject the contention of the claimant-respondents.
7. Now we are to consider whether the valuation fixed by the Land Acquisition Collector at Rs. l4,000/- per acre would be just and reasonable. It is true that the land was acquired as far back as in 1983, but even then the rate per acre was fixed at Rs. 14,000/- per acre which appears to us to be unreasonable, whimsical and arbitrary and did not reflect the correct valuation. It is true that any prospective increase in the price of the land which was acquired previously shall be of no consideration while determining the valuation of the land acquired by the State subsequently. But at the same time, we find that the price of the land fixed in the present cases at Rs. 14,000/- per acre was not only unreasonable, but it was also ludicrously low. It is noticed that the referal court did not discuss Exts. 2, 3 and 5 and was only persuaded by the observation of this Court in its judgment in F.. A. No. 12/88 (Ext. 2) in respect of acquisition of land situated at Ramgarh. Ext. 2 shall have no real nexus for determination of potential value of the acquired land in question if it is considered in the light of the judgment of the Supreme Court in Kanwar Singh's case (A. I. R. 1999 S. C. 317). Similarly, Ext. 3, the sale deed, has no relevance if it is considered in the light of Basant Kumar's case ( (1996) 1 S. C. C. 542) and also the Full Bench judgment of Andhra Pradesh High Court reported in 2000 (i) All India Land Acquisition & Compensation Cases 183 (F. B.), referred to supra. Ext. 5 is the Brochure for New Cuttack Development Scheme of the C. D. A., which was published subsequent to the acquisition. Thus, there is practically no evidence worthwhile left to be considered before the referal court in support of the claimants' case.
Ext. 2 in L.A. Misc. Case No. 2/94 (corresponding to F.A. Nos. 182/95) is Revenue & Excise Department Letter No. 38889, dated 30th. August, 1991, whereunder land of Ac. 116.800 situated at Tangarhuda village has been granted by the State Government for 99 years to C. D, A. on a premium fixed at Rs. 3 lakhs per acre. There is no evidence as to the situation and potentiality of this land compared to the land acquired by the State Government for flood embankment. On a careful consideration, we also find that the referal court has not considered the evidence adduced by the State.
8. In the aforesaid situation, therefore, we have to consider whether this Court can come to an independent observation bereft of the findings of the referal court to determine the compensation, or would it be appropriate to send the matter again to the referal court for fresh consideration. The State of Orissa although produced certain certified copies of documents in support of the stand-point of valuation, yet neither the vendor nor the vendee had been examined. We also do not find any other document worthwhile filed by the State to determine the real value.
9. The next question shall, however, arise that in this peculiar situation can this Court go into the question of potential value and determine the compensation at the appellate stage. The Supreme Court in the recent judgment reported in 2001 A, I. R. S.C.W. 2507 (Srinivasa Reddy and others v. Mandal Revenue Qfficer-cum-Land Acquisition Officer) held that if there are no sufficient evidence before the Court then the High Court cannot by adopting capitalization method determine the value. Accordingly, the matter was remitted back to the court below. We, therefore, think it proper to quote the relevant portion of the aforesaid judgment :--
"4. We do not think the approach of the High Court in this matter is satisfactory. If as stated by the High Court there was no evidence to determine the compensation, the proper course for the High Court was to have remitted the matter to the concerned authority to adduce evidence in that regard and then determined appropriate compensation or on the available material should have examined the matter and determined what appropriate compensation. Now neither of these courses having been adopted by the High Court, we have no other option but to set aside the order made by the High Court and remit the matter to the High Court to examine in the light of the evidence adduced by the parties before the Reference Court and to determine the appropriate compensation or to adopt any other course......."
So, therefore, in the above conspectus of the case we have no other option but to remit back the matter to re-determine the potential value of the land at the time of acquisition after giving opportunities to the claimant as well as the State. Since the matter is lingering for almost two decades, we, however, restrict the time to complete the enquiry by the referal court. The referal court in the aforesaid circumstances shall determine the true and potential value by taking into consideration the situation of the land and the purpose of acquisition, within a period of three months from the date of communication of the order. It is needless to mention that apart from the judgments quoted above in this judgment, the referal court shall also take into consideration the various guidelines indicated by the Supreme Court and determine the cases. The parties are directed to lead fresh evidence if so desired. The court below on the evidence already on record together with the evidence to be adduced by both parties shall determine the fair and just compensation payable to the claimants. To avoid delay, the parties are directed to appear on 3-9-2001 at 10.30 a.m. before the court below.
10. With the above observation, we vacate the impugned judgments passed by the court below and remit all the matters to the referal court for re-determination. The lower court records be sent back forthwith.
N. Y. Hanumanthappa, C.J.
11. I agree,
12. Ordered accordingly.