State of Orissa, Represented by the Land Acquisition Zone Officer Vs. Guru Charan Sahu - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment 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 statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - mahua, guava and other trees like sal etc. government advocate, vehemently urged that the court below has failed to appreciate the scope and ambit of sections 23 and 24 of the land acquisition act for determination of the market value of the lands in question. mahua, guava and asana and other trees like sal etc.orderpradip mohanty, j.1. this appeal, under section 54 of th,e land acquisition act, 1894, is preferred by the state of orissa against the order dated 23.9.1998 passed by the civil judge (sr. divn.), deogarh, in l.a. case no. 72 of 1998.2. the admitted facts, in brief, are that pursuant to notification under section 4(1) of the land acquisition act, published in e.o.g. no. 328 dated 8.3.84, the government of orissa acquired ac. 1.20 decimals of land under khata no. 2 of village niktimal in deogarh tahasil, which belonged to the respondent-claimant, for the purpose of construction of rengali dam project. the land acquisition officer, deogarh, determined the market value of the acquired land at rs. 9,256/- and accordingly awarded the compensation to the claimant which he received on protest.the claimant-respondent filed a petition before the land acquisition officer, deogarh, alleging that he is the owner in possession of the acquired lands. the said lands were class-1 productive lands with assured irrigation facility and some fruit bearing trees viz. mahua, guava and other trees like sal etc. were standing thereon. accordingly, he claimed higher valuation multiplied by twenty annual yields. the land acquisition officer referred the dispute under section 18 of the land acquisition act to the learned civil judge (sr. divn.), deogarh, for adjudication.3. the learned civil judge, after considering the evidence on record, by his judgment dated 23.9.98 awarded higher compensation of rs. 26,899.20 paise for the acquired lands and directed the land acquisition officer to pay the dues with all statutory benefits after deducting the amount which he had already paid.4. during hearing of the appeal, mr. g. k. mohanty, learned addl. government advocate, vehemently urged that the court below has failed to appreciate the scope and ambit of sections 23 and 24 of the land acquisition act for determination of the market value of the lands in question. he also argued that the award of higher compensation is exorbitant and, thus, prayed for setting aside the judgment.mr. ashok das, learned counsel for the respondent-claimant, on the other hand, contended that the court below has rightly assessed the prevailing market value and passed the order after considering the evidence on record. the learned counsel submitted that there is no illegality committed by the court below in determining the higher compensation.5. the issue involved in this appeal relates to whether the compensation awarded by the learned civil judge is higher than and disproportionate to market price.in order to establish their case, the claimant examined two witnesses. p.w. 1 is the claimant himself. in his examination-in-chief he has stated that the acquired land was class-i variety with assured irrigation facilities. he was cultivating paddy and mung crops in the said land and was getting 20 quintals of paddy and 4 quintals of mung per acre. there were also some fruit bearing trees viz. mahua, guava and asana and other trees like sal etc. p.w. 2 is a co-villager of the claimant. he fully supports the evidence of the claimants. the land acquisition officer has not examined a single witness on his side nor has he produced a scrap of paper before the court below in order to come to a finding as to on what basis he determined the compensation amount. except some bald suggestions, nothing has also been brought out in the cross-examination of the witnesses to discredit their evidence.this court, therefore, is inclined to believe that the learned civil judge (sr. divn.), deogarh, has rightly assessed the valuation of the land and the trees standing thereon and has determined the compensation for which this court does not deem it expedient to interfere with the impugned order. moreover the land was acquired in 1984 and in the interregnum 18 years have already been passed and the cost of every thing has sky rocketed. this court, therefore, is not able to accept the contention of the learned addl. government advocate.6. for the reasons stated above, the first appeal fails and is accordingly dismissed, but in the circumstance of the case, there will be no order as to cost.

Judgment:
ORDER

Pradip Mohanty, J.

1. This appeal, under Section 54 of th,e Land Acquisition Act, 1894, is preferred by the State of Orissa against the order dated 23.9.1998 passed by the Civil Judge (Sr. Divn.), Deogarh, in L.A. Case No. 72 of 1998.

2. The admitted facts, in brief, are that pursuant to notification under Section 4(1) of the Land Acquisition Act, published in E.O.G. No. 328 dated 8.3.84, the Government of Orissa acquired Ac. 1.20 decimals of land under Khata No. 2 of village Niktimal in Deogarh Tahasil, which belonged to the respondent-claimant, for the purpose of construction of Rengali Dam Project. The Land Acquisition Officer, Deogarh, determined the market value of the acquired land at Rs. 9,256/- and accordingly awarded the compensation to the claimant which he received on protest.

The claimant-respondent filed a petition before the Land Acquisition Officer, Deogarh, alleging that he is the owner in possession of the acquired lands. The said lands were Class-1 productive lands with assured irrigation facility and some fruit bearing trees viz. mahua, guava and other trees like Sal etc. were standing thereon. Accordingly, he claimed higher valuation multiplied by twenty annual yields. The Land Acquisition Officer referred the dispute under Section 18 of the Land Acquisition Act to the learned Civil Judge (Sr. Divn.), Deogarh, for adjudication.

3. The learned Civil Judge, after considering the evidence on record, by his judgment dated 23.9.98 awarded higher compensation of Rs. 26,899.20 paise for the acquired lands and directed the Land Acquisition Officer to pay the dues with all statutory benefits after deducting the amount which he had already paid.

4. During hearing of the appeal, Mr. G. K. Mohanty, learned Addl. Government Advocate, vehemently urged that the court below has failed to appreciate the scope and ambit of Sections 23 and 24 of the Land Acquisition Act for determination of the market value of the lands in question. He also argued that the award of higher compensation is exorbitant and, thus, prayed for setting aside the judgment.

Mr. Ashok Das, learned counsel for the respondent-claimant, on the other hand, contended that the court below has rightly assessed the prevailing market value and passed the order after considering the evidence on record. The learned counsel submitted that there is no illegality committed by the court below in determining the higher compensation.

5. The issue involved in this appeal relates to whether the compensation awarded by the learned Civil Judge is higher than and disproportionate to market price.

In order to establish their case, the claimant examined two witnesses. P.W. 1 is the claimant himself. In his examination-in-chief he has stated that the acquired land was Class-I variety with assured irrigation facilities. He was cultivating paddy and mung crops in the said land and was getting 20 quintals of paddy and 4 quintals of mung per acre. There were also some fruit bearing trees viz. mahua, guava and Asana and other trees like Sal etc. P.W. 2 is a co-villager of the claimant. He fully supports the evidence of the claimants. The Land Acquisition Officer has not examined a single witness on his side nor has he produced a scrap of paper before the court below in order to come to a finding as to on what basis he determined the compensation amount. Except some bald suggestions, nothing has also been brought out in the cross-examination of the witnesses to discredit their evidence.

This Court, therefore, is inclined to believe that the learned Civil Judge (Sr. Divn.), Deogarh, has rightly assessed the valuation of the land and the trees standing thereon and has determined the compensation for which this Court does not deem it expedient to interfere with the impugned order. Moreover the land was acquired in 1984 and in the interregnum 18 years have already been passed and the cost of every thing has sky rocketed. This Court, therefore, is not able to accept the contention of the learned Addl. Government Advocate.

6. For the reasons stated above, the first appeal fails and is accordingly dismissed, but in the circumstance of the case, there will be no order as to cost.