STATE OF ORISSA Vs. BAISHNAB SAHU

JUDGEMENT

(1.) THIS is an appeal from the award given by the Arbitrator, Hirakud Land organisation, fixing the amount of compensation payable to the respondents for the acquisition of their lands in village Lapang now submerged in the artificial lake formed by the construction of the Hirakud Dam accross the river Mahanadi. The total extent of the lands acquired is 13. 39 acres. The lands consisted of (1) Bahal or first class paddy-lands 9. 07 acres : (2) Berna or second class paddy-lands 2. 52 acres, and (3) Mal or 3rd class paddy-lands -- 1. 80 , acres.

(2.) THE lands were acquired under the provisions of Orissa Act XVIII of 1948. Section 7 (1) (e) of that Act says that in fixing the amount of compensation payable, to dispossessed owners, the Arbitrator shall have regard of the provisions of Sub-section (1) of Section 23 of the Land Acquisition Act while estimating the" market value. But the second proviso to Clause (e) of Sub-section (1) of Section 7 of the Act says that where tinder any law or custom the lands acquired are not saleable the market value of such lands shall be such multiples as may be prescribed of the deduced rent to be calculated in the prescribed manner, with an addition of 50 per cent. The' disputed lands were admittedly ryoti lands in Sambaipur district which are governed by the provisions of the Central Provinces Tenancy Act of 1898 as modified from time to time. Under old Section 46 of that Act there were restrictions on the sale of lands of an occupancy tenant and in estimating the market value of such lands the rules framed by the Government of Orissa from time to time under Orissa Act XVIII of 1948, in exercise of the powers conferred by the 2nd proviso to Clause (e) of Sub-section (1) of Section 7 of that Act would undoubtedly have prevailed. But in 1953 the Orissa Legislature amended Section 46 of the Central Provinces Tenancy Act by an amending Act (Orissa Act XIII of 1953 ). In consequence of this amendment an occupancy ten ant was given complete freedom to transfer his holding or a portion of it to a bona fide agriculturist but if he is a member of a schedule tribe he could not transfer it to a person who is not a member of a schedule Tribe except with the previous permission of the Deputy com missioner. This restriction has no application here be cause admittedly the respondents are not members of a scheduled tribe. Thus, in consequence of this amendment of 1953 they had complete freedom to transfer lands to a bona fide agticulturist. The Arbitrator, therefore held that the lands ceased to be non-saleable lands, and that consequently the rules prescribed for estimating the amount of compensation, payable for non-saleable lands would not apply. He then called upon both parties to give their estimate of the net income from the lands and he fixed the compensation payable at 16 times the net annual income and then added 15 per cent by way of solatium for the compulsory nature of the acquisition. He thus estimated the total compensation payable at Rs. 25783. 02 np. though the respondents had claimed only Rs. 34815. 40 np.

(3.) THE learned Advocate General challenged the order of the Arbitrator on the following grounds: