Lalan Prasad vs State Of Cg And Another
2022 Latest Caselaw 4318 Chatt

                                      1

                                                                    NAFR
            HIGH COURT OF CHHATTISGARH, BILASPUR

                     First Appeal (M) No. 12 of 2009

                         Reserved on 15.06.2022
                        Pronounced on 08.07.2022
     ● Lalan Prasad Son of Late Shri Gajranjan Singh, Resident of
       Village Sapos,Tahsil Dabhara, District Janjgir-Champa (C.G.)
                                                          ---- Appellant
                               Versus
     1. State of Chhattisgarh, through: Collector, Janjgir, District Janjgir-
        Champa (C.G.)
     2. Land Acquisition Officer, Sakti, District Janjgir-Champa (C.G.)
                                                         ---- Respondents

For Appellant                 :      Shri H.S.Patel, Advocate.
For Respondents               :      Shri Priyanshu Gupta, P.L.

                 Hon'ble Shri Justice Sanjay S. Agrawal

                          C.A.V. Judgment/Order

1. 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.

2. 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.

3. 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.

4. 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 :-

"12-- mijksDr lk{; foospuk ,oa Åij fn;s x, fu"d"kksZ ds vk/kkj ij vkosnd dk ;g fjQjsal vkosnu i= vkaf'kd :i ls Lohdkj dj vkosnd ds i{k esa rFkk vukosnd ds fo:/n fuEukuqlkj vf/kfu.kZ; ikfjr fd;k tkrk gSA 1& vkosnd ds LokfeRo dh Hkwfe xzke liksl Ik-g-u- 15 fLFkr [kljk [email protected] jdck 0-76 ,dM+ Hkwfe dk eqvkotk 2]50]500 :- izfr gsDVs;j dh nj ls fu/kkZfjr dj Hkqxrku fd;k tk;saA 2& vkosnd ds LokfeRo dh Hkwfe [kljk ua- [email protected] esa fLFkr dPpk edku dk 5 gtkj :- rFkk dPpk dqvka] uhcw] egqvk] equxk] cgsjk dk eqvkotk ekxZn'khZ fla/nkar 2001&02 esa nf'kZr eqY; vuqlkj fd;k tk;sA 3& mDr jkf'k ij vkosnd dks vf/klqpuk izdk'ku fnukad 6-1-2002 ls laiw.kZ jkf'k dh olqyh fnukad rd 6 izfr'kr okf"kZd C;kt Hkh vnk fd;k tk;sA 4& vkosnd dks mDr jkf'k ij 30 izfr'kr lksfyf'ke fn;k tk;saA 5-& vkosnd dks mDr Hkwfe ds laca/k es ftruk eqvkotk vnk fd;k x;k gS og bl jkf'k eas lek;ksftr fd;k tk;s rFkk mrus jkf'k ij C;kt ns; ugh gksxkA 6& vkosnd dks bl vkosnu dk O;; vukosndx.k ogu djsaxsaA 7& vf/koDrk 'kqYd izekf.kr gksus ij 1000:- fu/kkZfjr fd;k tkrk gSA rnkuqlkj O;; rkfydk cuk;h tk;s A"

5. Being aggrieved with the aforesaid award, the instant appeal

has been preferred by the Appellant.

6. 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.

7. On the other hand, learned Government Advocate appearing for

the respondents/State has supported the award impugned as

passed by the Reference Court.

8. I have heard learned counsel appearing for the parties and

perused the entire record carefully.

9. 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.

10. 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.

11. 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.

12. 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).

13. 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.

14. 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.

15. 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.

16. 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.

17. A decree be drawn accordingly.

Sd/-

(Sanjay S. Agrawal) Judge

Anjani