S. Somaya Vs. Special Land Acquisition Officer, Berhampur - Court Judgment

SooperKanoon Citation

sooperkanoon.com/527136

Subject	Property
Court	Orissa High Court
Decided On	Jan-05-1989
Case Number	First Appeal No. 73 of 1986
Judge	S.C. Mohapatra, J.
Reported in	AIR1989Ori192
Acts	Land Acquisition Act, 1894 - Sections 18, 23 and 54
Appellant	S. Somaya
Respondent	Special Land Acquisition Officer, Berhampur
Appellant Advocate	R. Mohanty and ;J. Panda, Advs.
Respondent Advocate	S. Rath, Adv. General and ;S.K. Das, Addl. Standing Counsel
Disposition	Appeal partly allowed
Cases Referred	Berhampur v. Togi Mohalakshmi

Excerpt:

.....of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the..........claimant received the compensation under protest and requested for a reference to court and accordingly, the matter was referred to court under section 18 of the act. trial court followed the division bench decision of this court in f. a. 268 and batch of 1981 (chinaga joga rao v. special land acquisition officer, berhampur) decided on 23-8-1985 and awarded 20% more towards the value of trees. this is the grievance of the appellant.3. claimant in his objection stated that there were 30 fruit bearing coconut trees and 500 banana trees besides other trees. in evidence he stated as p.w. 1 that there were 30 fruit bearing and 2 small coconut trees and fifty banana trees. land acquisition officer (d.w. 1) however, stated that there were 40 fruit bearing, 15 non-fruit bearing and 1 small coconut tree. no cross-examination has been made with regard to banana trees. trial court was correct in accepting the number of trees as stated by the land acquisition officer.4. there is no evidence with regard to value of non-fruit bearing and small coconut trees. compensation has been awarded by the collector at the rate of rs. 80/- per fruit being coconut tree, rs. 40/- per non-fruit bearing.....

Judgment:

S.C. Mohapatra, J.

1. This appeal under Section 54 of the Land Acquisition Act filed by the claimant is confined to the compensation payable for trees.

2. By Notification under Section 4(1) of the Act published on 11-6-1971, 625 acres 53 cents of land in Golabandha and other villages were acquired for Air Guided Missile School, Golabandha. Land of the claimant is included within the total land acquired. Collector awarded compensation for trees following the rate given in the list prepared by the Delta Irrigation Department in 1964. Claimant received the compensation under protest and requested for a reference to Court and accordingly, the matter was referred to Court under Section 18 of the Act. Trial Court followed the Division Bench decision of this Court in F. A. 268 and batch of 1981 (Chinaga Joga Rao v. Special Land Acquisition Officer, Berhampur) decided on 23-8-1985 and awarded 20% more towards the value of trees. This is the grievance of the appellant.

3. Claimant in his objection stated that there were 30 fruit bearing coconut trees and 500 banana trees besides other trees. In evidence he stated as P.W. 1 that there were 30 fruit bearing and 2 small coconut trees and fifty banana trees. Land Acquisition Officer (D.W. 1) however, stated that there were 40 fruit bearing, 15 non-fruit bearing and 1 small coconut tree. No cross-examination has been made with regard to banana trees. Trial Court was correct in accepting the number of trees as stated by the Land Acquisition Officer.

4. There is no evidence with regard to value of non-fruit bearing and small coconut trees. Compensation has been awarded by the Collector at the rate of Rs. 80/- per fruit being coconut tree, Rs. 40/- per non-fruit bearing coconut tree and Rs. 10/- for the small coconut tree. Trial Court added 20% more to the value. In absence of any evidence there is no scope for interference with the valuation of non-fruit bearing and small coconut trees. Rate fixed by the trial Court is affirmed.

5. Land Acquisition Officer (D.W. 1) stated that coconut was selling at Rs. 1.25 paise at the time of notification. P.W. 1 stated that one coconut tree bears 300 nuts per year. In the objection, it was stated that 300 coconuts valued Rs. 300/- are yielded annually per tree. This uncorroborated testimony cannot be accepted wholly. However, realities of life cannot be forgotten. Fruit bearing coconut trees bear some fruits. Land Acquisition Officer should have taken note of the same to award compensation on that basis. Trial Court also ought to have considered the same. Judgment of the trial Court is vulnerable on that account.

6. Learned Advocate General submitted that in view of the decision of the Division Bench which was followed by me in F.A. 202 of 1984 (Special Land Acquisition Officer, Berhampur v. Jutti Torinayya) decided on 7-11-1988 there is no scope for interference in this appeal since the acquisition was in respect of the same project under the same notification. In the decision of the Division Bench the only question was whether the rate indicated by the Delta Irrigation Department in 1964 was acceptable as regards value of trees. Division Bench held that hard realities of life cannot be forgotten and in absence of direct evidence made a guess work to enhance the rate by 20%. There was no specific dispute with regard to value of fruit bearing coconut trees. Same is the effect of my decision in F.A. 302 of 1984 (supra). In this case, however, there is some evidence with regard to fruit bearing coconut trees. Thus, the two earlier decision will have no application to the present case.

7. In F.A; 166 of 1984 (Special Land Acquisition Officer, Berhampur v. Togi Mohalakshmi) decided today (5-1-89) I have held that compensation payable per fruit bearing coconut tree shall be Rs. 650/-. The same rate is available to the appellant.

8. In the result, appeal is allowed in part. The judgment of the trial Court is modified to the extent that compensation for each fruit bearing coconut trees shall be paid at Rs. 650/- All other valuations are confirmed. Claimant, is entitled to Statutory benefits permissible under, the Act as amended by Act 68 of 1984. No costs.