TaxTMI 
TaxTMI 
1955 (3) TMI 56
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....at the first proviso to Section 7(1)(e) of the Act is ultra vires. 2. Under the provisions of the Act, several plots of cultivated and waste lands in village Larpank were acquired by the Government Plaintiff-respondent Bharat Chandra Nayak is the sole Gountia of the said village Larpank. Out of 13.66 acres of respondent's lands which were acquired under the provisions of the Act by the Government, 10.62 acres are Bhogra and 3.04 are gaonti-raiyati lands. There were quite a number of trees, standing on these lands, acquired under the provisions of the Act, such as, Mango, Tamarind, Mahul, Char, etc. The Government offered a sum of Rs. 4044-8-6, as compensation for the land and trees, but the respondent having objected to the amount of compensation laid his claim at Rs. 38,305/-. In these circumstances, the matter was referred to the Arbitrator for fixation of compensation under R. 9 of the Rules framed under the Act. In the present case the notifications of acquisition were made on 22-9-1948, 21-2-1949 and 12-3-1949. 3. The main point for determination in the present cases is the quantum of compensation and the principles under which the quantum is fixed. The State strongl....
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.... Under this proviso, the owner of lands to be acquired under the provisions of the Act will be entitled to receive compensation on the market value of the lands on the date of the notification of acquisition, or the market value of the lands acquired on the first day of September, 1939, with an addition of fifty per cent, whichever is less. It is needless to say, so far as the present acquisitions are concerned, that the value of the lands and the trees on the dates of acquisition must be several times more than the value on the first day of September, 1939, that is, the pre-war valuation. It is a notorious fact that the market value of the lands in the year 1939 was just a small fragment of the value of the year 1949 which must be at least five times the value of the lands in 1939. The manifest position, therefore, is that the value of the lands acquired in the years 1948 and 1949, according to the rate prevailing in 1939, can never be taken to be reasonable and just compensation. Compensation must always necessarily mean "a just, reasonable and equivalent price" of the land acquired, 4. We will now take up Article 31 of the Constitution which runs as follows; 31....
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....must ensure fixation of just and fair valuation of the appropriated property. Far from conforming to the above standard the principles laid down by the State Legislature will entitle the Government to acquire lands at a merely nominal value. Without discussing the matter any further, we will observe that the matter has been concluded by the decision of the Supreme Court in the case of -- 'State of West Bengal v. Mrs. Bella Banerjee', (A). There the impugned Act (The West Bengal Land Development and Planning Act (21 of 1948)) lays down the principle for fixation of compensation in the following terms : provided that * * * (b) in determining the amount of compensation to be awarded for land acquired in pursuance of this Act the market value referred to in Clause (1) of Sub-section (1) of Section 23 of the said Act shall be deemed to be the market value of the land on the date of publication of the notification under Sub-section (1) of Section 4 for the notified area in which the land is included subject to the following condition, that is to say, if such market value exceed by any amount the market value of the land on 31-12-1946, on the assumption tha....
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.... apply in full force to the impugned provisions of the Orissa Act. We will, therefore, unhesitatingly declare that the first proviso to Section 7(1)(e) of the Act is ultra vires as contravening Article 31(2) of the Constitution. The decision on this point will dispose of Civil Reference No. 2 of 1953 wherein learned Subordinate Judge of Sambalpur by his judgment dated 29-4-1953 made a reference under Section 113, Civil P. C. 7. Now, therefore, the compensation is to be fixed on the principles laid down under Section 23, Land Acquisition Act (Central Act No. 1) of 1894, that is to say, according to the market value of the acquired land on the date of acquisition. 8. We will now take up the valuation of the Bhogra lands. Out of 10.62 acres of Bhogra land acquired by Government, 2.78 acres are Bahal (first class), 85 Berna (second class), 1.64 Mal (third class) and nearly half of the area of the total acre age, that is, 5.34 acres are Atta (dry land of the worst class). It is the settled law that the Gountias have free right to transfer their proprietary interest as well as all their rights. There is no challenge to this position. On the Government side no witness had been exami....
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....ness, we are of the view that he is a failure in the matter of agricultural operation and if we take his evidence as a guide the annual produce of this land will practically be nil. The other witnesses also do not improve the case. The evidence of these witnesses were also placed before us and we are of the view that it is absolutely unsafe to be guided by their evidence. The Arbitrator therefore, having rightly discarded the oral evidence on record, had, no other alternative but to fall back upon Hamid's Settlement Report of 1926 in order to get at the annual gross produce of the Bhogra lands in village Larpank. In para. 47 at p. 49 of the Report, the cultivated land in the district of Sambalpur is divided into 30 classes. In para. 24 at p. 21, the estimate of the gross yield of each variety of land is given. To our mind, in the absence of any other evidence as to the annual yield of the Bhogra lands, this Settlement Report which is an authorised one may be accepted as a safe guide. On the basis of the figures available from this Report, the annual gross yield of the objector's Bhogra lands is as follows: Area of land acquired. Average gross Produce per acre ac....
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....50/- as compensation for the acquisition of Bhogra lands of 10.62 acres in village Larpank. 10. We will now take up gounti-raiyati lands. The main question in this connexion is whether these lands are saleable or not. If they are saleable, the compensation for these lands should be Valued exactly as the Bhogra lands, that is, sixteen times the net produce of the lands. But if they are non-saleable, the Gountia is only entitled to five hundred times of the deduced rent as agreed upon by the parties in respect of the non-saleable lands. The Gountia possesses these lands on account of surrender of the raiyats of the village, or the Gountia having cultivated some waste lands. There is no special class of tenant known, as Gountia raiyati tenancy in the Sambalpur tenancy law. Indeed in the present cases the objector-respondent is the sixteen annas Gountia of the village. The admitted position is that the Gountia holding raiyati land pays rent to the Government as other occupancy raiyat. It is indisputable that such lands cannot be Bhogra lands of the Gountia. It appears, in respect of these lands the Gountia is nominally his own tenant but in reality is the tenant of the Government as....
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....f the village and is subject to the provisions of revenue law governing such raiyats. Under Section 67-E, C. P. Land Revenue Act it is provided that the right of a Government raiyat in a survey-number held by him shall devolve as if it were land, but is not transferable except to a person who, if he survived the raiyat, would inherit his right, or to a co-sharer in such right, or, with the permission of the Deputy Commissioner, by a lease to a sub-tenant cultivating under the raiyat. There is no provision either in the Land Revenue Act or in the Tenancy Act to make such right transferable and we are not prepared to accept the position that such right can be placed at higher level than an occupancy raiyat's right. 12. It is to be observed in this connexion that the objector has not been able to produce a single transaction of sale of such right. On the contrary, the position is clear that such rights have been the subject-matter of leases and not of sales. On the above consideration therefore, we are of the view that these rights are non-transferable, and, as such, the requisite compensation as agreed upon by the parties regarding non-saleable land is five hundred times of th....
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.... the following rate : Bahada (2°) (2@) 4/- 16-0-0 Tamarind (20°) (1@) 10/- 210-0-0 Char (8°) (463@) 1/- 471-0-0 Mahul (2°) (28@) 10/- 300-0-0 Mango (6°) 10/- 60-0-0 Khajuri (1°) 3/- 3-0-0 Paksa (22°) 5/- 110-0-0 Sahaja (9@) 10/- 90-0-0 Rohen (1@) 10/- 10-0-0 Bara (1@) 10/- 10-0-0 (°) indicates trees on Bhogra & gaonti-raiyati lands. (@) indicates trees on waste lands. On the basis of the above calculation, therefore, the trees on Bhogra and gaonti-raiyati lands are valued by us at Rs. 409/- as against Rs. 1066/9/-and Rs. 394/- fixed by the Arbitrator and the Land Acquisition Officer respectively and the trees on waste lands are valued by us at Rs. 871/- as against Rs. 2438/5/- and Rs. 645/8/- fixed by the Arbitrator and the Land Acquisition Officer respectively. The total compensation on account of the trees, according to our calculation, thus comes to Rs. 1,280/-. 14. We accept the Arbitrator's finding that the objector as Gaontia, is entitled to Rs. 44/13/6 as the Gaontia's share i....