Gujarat High Court
The Special Land Acquisition Officer vs Bechar Govabhai Solanki on 20 July, 2023
Author: Ashutosh Shastri
Bench: Ashutosh Shastri
NEUTRAL CITATION
C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 121 of 2019
With
R/FIRST APPEAL NO. 102 of 2019
With
R/FIRST APPEAL NO. 101 of 2019
With
R/FIRST APPEAL NO. 139 of 2019
With
R/FIRST APPEAL NO. 216 of 2019
With
R/FIRST APPEAL NO. 202 of 2019
With
R/FIRST APPEAL NO. 219 of 2019
With
R/FIRST APPEAL NO. 193 of 2019
With
R/FIRST APPEAL NO. 122 of 2019
With
R/FIRST APPEAL NO. 123 of 2019
With
R/FIRST APPEAL NO. 105 of 2019
With
R/FIRST APPEAL NO. 187 of 2019
With
R/FIRST APPEAL NO. 473 of 2019
With
R/FIRST APPEAL NO. 218 of 2019
With
R/FIRST APPEAL NO. 186 of 2019
With
R/FIRST APPEAL NO. 227 of 2019
With
R/FIRST APPEAL NO. 103 of 2019
With
R/FIRST APPEAL NO. 189 of 2019
With
R/FIRST APPEAL NO. 204 of 2019
With
R/FIRST APPEAL NO. 220 of 2019
With
R/FIRST APPEAL NO. 104 of 2019
Page 1 of 33
Downloaded on : Sat Sep 16 22:13:18 IST 2023
NEUTRAL CITATION
C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023
undefined
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI Sd/-
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed No to see the judgment ?
2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy No of the judgment ?
4 Whether this case involves a substantial question No of law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== THE SPECIAL LAND ACQUISITION OFFICER & 1 other(s) Versus BECHAR GOVABHAI SOLANKI ========================================================== Appearance:
MR. H.K. PATEL, LD. ASST. GOVERNMENT PLEADER for the Appellant(s) No. 1,2 MR HD CHUDASAMA(234) for the Defendant(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI and HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Date : 20/07/2023 COMMON CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE DIVYESH A. JOSHI)
1. All these first appeals emanate from the judgment and award passed by the 6th Additional Senior Civil Judge, Jamnagar on 12th July, 2007 in the Land Reference Cases Nos.42 of 2006 to 66 of 2006 awarding additional amount of compensation of Page 2 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined Rs.50/- per square meter.
2. Since the challenge in all the captioned appeals is to the selfsame judgment and award, those were heard analogously and are being disposed of by this common judgment and order.
3. For the sake of convenience, the First Appeal No.121 of 2019 is treated as the lead matter.
4. Facts leading to the filing of the present appeal are as under;
4.1 For the purpose of preparing Aji-4 Irrigation Scheme, the land in question situated at village; Meghpar, Taluka: Jodiya, District: Jamnagar has been acquired by the Acquiring Body.
Notification under Section 4 of the Land Acquisition Act, 1894 was published on 26.04.2001 and notification under Section 6 of the Act was published on 14.02.2002. Thereafter, the Land Acquisition Officer awarded the amount of compensation for the acquired land at the rate of Rs.5/- per square meter by exercising the power under Section 11 of the Land Acquisition Act.
4.2 Being aggrieved by and dissatisfied with the impugned award passed by the Land Acquisition Officer, the original claimants had filed reference under Section 18 of the Land Acquisition Act for the purpose of enhancement of the said awarded amount by demanding additional compensation of Rs.100/- per square meter. The said reference was numbered as Land Reference Case Nos.42 of 2006 to 66 of 2006 and as all the above references contained common question of law Page 3 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined and facts as well as the issue for determination of the price of the land are also common and from the very same village, all the LAR's were ordered to be heard and decided together and, ultimately, it came to be consolidated and decided by the learned Civil Judge by common judgment and award dated 12.07.2017, which is challenged by the State by way of preferring the present first appeals.
5. Learned AGP Mr. H.K. Patel has submitted that the impugned judgment and award passed by the learned Judge is not just, proper, reasonable and not based upon the sound principle of law. The learned Judge has not properly evaluated and appreciated the evidence available on record in its true spirit and proper perspective. At the time of appreciating the materials available on record the learned Judge has committed grave error by not giving due weightage to the evidence available on record. Per contra, the learned Judge has given undue emphasis upon the other non-important documents and reached to the conclusion, which is not based upon sound principle of law and, therefore, the view adopted by the learned Judge is required to be quashed and set aside by allowing the present first appeals.
6. Learned AGP Mr. Patel has submitted that the learned Judge has seriously erred in awarding additional compensation on higher side over and above the compensation already awarded by the Land Acquisition Officer vide order dated 08.10.2005 after considering the evaluating all the relevant factors like location of the land, fertility of the land, crops prospect, the development of the village as well as sale deeds Page 4 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined of the agricultural lands of the said village executed during the previous five years and, therefore, the reasons assigned and findings given by the Land Acquisition Officer are just, proper and reasonable and based upon the documentary evidence and mostly decided on the basis of average sale price after considering the previous five year's transactions.
7. Learned AGP Mr. Patel has vociferously submitted that as the reference was preferred after lapse of period of limitation, therefore, solely on this ground, reference applications ought not to have been entertained by the learned Judge and, therefore, the judgment and award passed by the learned Judge is required to be quashed and set aside only on the basis of principle of law of limitation. Learned AGP Mr. Patel has read the evidence available on record and submitted that one of the witnesses examined by the defendants has very categorically stated in his deposition that the Land Acquisition Officer has considered all the relevant aspects of the land at the time of assessing the value of the land and, thereafter, determined the value of the land. In the operative part of the order, it is clearly reflected that those relevant factors have been considered by the Land Acquisition Officer and the officers of the defendant has put reliance upon those set of documents which the Land Acquisition Officer has considered while fixing the rate of the land. However, the said evidence was not considered and appreciated by the learned Judge and passed the impugned judgment and award. Learned AGP Mr. Patel has submitted that only on the strength of the oral evidence produced by the claimants, the learned Judge has Page 5 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined determined the value of the land. Along with the oral evidence, no supportive documents have been produced by the claimants to substantiate their claim, and in absence of any cogent and convincing evidence, the learned Judge ought not to have passed the impugned award by assessing the amount of value of land on higher side. The learned AGP Mr. Patel has read the evidence of the witnesses and submitted that almost all the claimants have candidly accepted the propositions put forward by the defendants in the cross- examination that as per the revenue records, they were getting crop of one season only during the year. Even though the learned Judge has not considered the said evidence in proper perspective and allowed the reference of the claimants on higher footing. The claimants have miserably failed to lead evidence to the effect that how much crop was yielded at the end of year, where they are selling, what was the price of the crop and total how much amount they were earning. Not only that they are also failed to lead evidence to the effect that the claimants have also not produced the books of accounts about the sale of the product to the vendor, and in absence of those important documents, the oral evidence of the claimants cannot be treated as gospel truth and by putting sole reliance upon the said set of evidence, the learned Judge ought not to have granted the additional compensation on such a higher price. The learned Judge has erred in discarding award passed by the Special Land Acquisition Officer without assigning any cogent and convincing reason. Even though, the learned Special Land Acquisition Officer has taken into consideration the market value prevailing at the time of Page 6 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined issuance of the notification. At the time of considering market value of the land many important factors are required to be seen, i.e. potentiality of the land, quality and fertility of the land, location of the land, development of the surrounding area and price hike of the land on the basis of the development in the vicinity area of the acquired land. The Special Land Acquisition Officer has considered all those aspects at the time of determination of the price of the land and such documents were part and parcel of the record. Even though the said documents have not been considered by the learned Senior Civil Judge and therefore the same is required to be quashed and set aside.
8. The learned AGP Mr. Patel has submitted that at the time determining the value of the land, the learned Judge ought to have considered the prevailing policies of the State Government in calculating the amount of yield product. Admittedly, here in the case on hand, the claimants have failed to lead evidence to that effect, and in absence of any concrete evidence, solely on the basis of oral deposition of the witness the price of the land cannot be determined. The learned Judge has committed grave error by putting reliance upon the oral versions of the claimants without any supporting documentary evidence and passed the order which requires to be quashed and set aside. The learned AGP Mr. Patel has submitted that considering the above stated factual aspects as well as the evidence available on record as and the position of law this is the fit case wherein interference of this court is required by quashing and setting aside the impugned Page 7 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined judgment and award passed by the reference court.
9. Learned advocate Mr. H.D. Chudasama appearing on behalf of the original claimants has submitted that the judgment and award passed by the learned Additional senior Civil Judge Jamnagar is just, fare and reasonable and based upon the sound principle of law and does not require any interference at the end of this Court. Learned advocate Mr. Chudasama has submitted that after considering and appreciating all the evidence available on record as well as arguments canvassed by the learned Advocates for the rival parties, the learned Judge has passed balance order which is based upon sound principle of law. And therefore, requires to be confirmed. Learned advocate Mr. Chudasama has submitted that in fact the Learned Judge has partly allowed the reference of the claimants. The claimants are entitled to get 100% Additional compensation per sq.mtr. as per the evidence available on record and, therefore, the claimants could have to challenge the said award by way of preferring cross- objection but due to financial constraints, the poor claimants are not able to prefer the cross-objection but simply due to non-filing of cross-objection by the claimants, it cannot be said that they are fully satisfied with the impugned judgment and award. Learned advocate Mr. Chaudasma has submitted that the claimants have entered into the witness box and they have categorically deposed that the land is situated in the prime location of village Meghpar which is a developed village and almost all basic and requisite facilities like Bank, School, Hospital are available in the village. The price of the land are on higher footing, the claimants are harvesting the crop of BT Page 8 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined Cotton, groundnut and cumin. The claimants have already produced the 7/12 abstracts, Form No.6 and Form No.8A to prove their ownership over the land in question and the said documents showing the crops yielded by the concerned farmer, was certified by the office of the Talati. Learned advocate Mr. Chudasma has submitted that the claimants took services of government approved valuer to assess the value of the land. The concerned government valuer has paid visit to the village and after physical verification of the area, prepared a report based upon the sound scientific method and opined that the value of the land is Rs.113/- per square meter. Along with the report, he has produced certain documents to substantiate his claim of determination of the value of the land. The said government approved valuer was examined by the claimants as a witness, and in his deposition, he has very categorically stated that the determination of the value of the property is based on income capitalization method and along with the report he has produced all those documents. The said witness was cross-examined by the learned advocate for the defendants (appellants), but they failed to disprove the evidence of the said witness which clearly reflects from the observations made by the learned Judge in the operative part of the impugned award.
10. Learned advocate Mr. Chudasma has further submitted that the claimants were stepped into the witness box and they have categorically deposed that they were yielding crop of groundnut in all the seasons, and sometimes, they would be in a position to yield crop of two seasons in a year. After appreciating and considering the evidence available on Page 9 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined record, the learned Judge holds that the claimants were yielding only one crop and, accordingly, assessed the value of the land. Therefore, it cannot be said that excess amount was determined by the learned Judge. Learned advocate Mr. Chudasma has submitted that the Secretary, APMC, was also examined as a witness by the claimants. The said witness has produced the price list prepared on the letterhead of the APMC, wherein in the tabular format, the prices of commodities are mentioned. The evidence of the said witness would crystalize the position that what was the actual price of the commodities at the relevant point of time. Learned advocate Mr. Chudasma has also submitted that in their depositions, almost all the claimants deposed that they themselves are farmers and indulging in the agricultural activity since their childhood and they themselves are cultivating the said land and, therefore, the expenditure of cultivation of the land is less as compared to the work being carried out through labourers. Therefore, 25% amount is required to be deducted from the gross income. Even though the learned Judge has reduced 50% amount under the head of expenditure. Therefore, the decision taken by the learned judge is not on higher side and does not require any interference.
11. Learned advocate Mr. Chudasma has submitted that a preliminary objection about the maintainability of the reference is raised by the learned advocate for the defendants solely on the basis of principle of law of limitation. Learned advocate Mr. Chudasma has submitted that the references have been filed well within the time, and as such, there is no delay in preferring the references before the Reference Court.
Page 10 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined He has submitted that as per the statutory provisions of the Land Acquisition Act, within the span of six months from the date of order passed by the Collector and/or after receipt of notice from the Collector under Section 12(2) whichever is expired earlier, the reference is required to be filed. The Land Acquisition Officer has declared the award on 08.10.2005 and the said award was passed in the absence of the claimants. Copy of the award was served to the claimants on 05.03.2006 in the form of notice issued under Section 12(2) of the Act. Therefore, after receipt of the notice, within the span of six months, claimants are entitled to prefer reference before the Reference Court. The claimants have preferred the reference on 16.12.2004 and, therefore, the document itself shows and suggests that the reference was preferred well within the time, i.e, before the end of period of limitation.
12. To substantiate his arguments, learned advocate Mr. Chudasma has relied upon the following decisions;
1) Chimanlal Hargovinddas vs. Special Land Acquisition Officer, Poona & Anr., reported in AIR 1988 SC 1652;
2) Special Land Acquisition Officer, Narmada Project Unit-12, Bharuch vs. Ratilal Chunilal, First Appeal No.3663 of 2007;
3) State of Gujarat Thr. Special Land Acquisition Officer, Narmada Yojna & Anr. vs. Muljibhai Bhailalbhai Patel, First Appeal No.3807 to 3813 of 2009;
Page 11 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined
4) State of Gujarat & Ors. vs. Rama Rana & Ors., reported in (1997) 2 SCC 693;
5) Smt. Tribeni Devi & Ors. vs. The Collector, Ranchi, reported in AIR 1972 SC 1417;
13. In such circumstances, referred to above, learned advocate Mr. Chudasma has submitted that the impugned judgment and award passed by the Reference Court does not require any interference.
14. We have heard the leaned advocates appearing for the rival parties and also gone through the record and proceedings. It is found out from the record that the claimants have filed the references before the Reference Court under Section 18 of the Land Acquisition Act on 16.12.2005. As all the land references are belonging to village Meghpar and location of the land is situated in the vicinity area, the Land Acquisition Officer has passed order on the same day. Therefore, all those references have been directed to be tried together by consolidating it and evidence was also laid in one matter by treating the Land Reference Case No.42 of 2006 as the lead matter. To prove their case, the claimants have examined four witnesses and the defendant has examined one witness. It is found out from the record that preliminary declaration under Section 4 of the Land Acquisition was issued on 26.04.2001 and a notification under Section 4 was issued on 14.02.2002. The Land Acquisition Officer has passed order under Section 11 on 08.10205 by considering the value of the Page 12 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined land at Rs.5/- per square meter. The said amount was accepted by the claimants with objections and, thereafter, references have been preferred before the competent authority under Section 18 of the Land Acquisition Act. Evidence was laid by the claimants to the effect that the land was irrigated one, fertile and flat one. In many fields, availability of well are there for the purpose of irrigation and during the years, two to three times they used to yield the crop and by doing this activity, they used to get clear cut profit of Rs.30,000/- from the same. The land is situated in the center of the village. All the basic and requisite facilities of human being like nursery, primary school, secondary school, primary health center, cooperative bank, milk cooperative bank, telephone exchange, electricity office, S.T. Bus Station are available in the village and, therefore, prices of the lands in question are required to be considered on higher footing in comparison to the other lands where the said facilities are not available.
15. To counter the same, learned AGP Mr. Patel has submitted that, in fact, in the vicinity area of the land for Aji-4 irrigation scheme, land was acquired in the year 1998 and at that point of time, price of irrigation land was considered as Rs.28.12/- Paisa per square meter and the non-irrigation land price was fixed at Rs.18.17/- per square meter in the Land Reference Case No.16 of 1992 by consent award. The law is well settled in that regard that considering the price rise of the property, 10% rise is required to be given to the subsequent date. Admittedly, the present acquisition were being made in Page 13 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined the year 2000. Therefore, at the most they are entitled to get 20% rise in the said amount as per the law laid down by the Hon'ble Apex Court in Maya Devi's case and, accordingly, price of the land is required to be fixed. The learned judge ought to have considered the said set of evidence accordingly but the same has not been considered by the learned Judge in true spirit and proper perspective and, therefore, the judgment and award passed by the learned judge is not fair and reasonable one.
16. It is found out from the record that to prove their case, the claimants have stepped into the witness box and they have categorically deposed that the land is fertile, irrigated and the location of the land is also prime one. The claimants have also produce copy of 7/12 abstract and on the basis of the said documents, what crop actually they were yielding from the said land is found out. The claimants have also examined the secretary of APMC of the area. The said witness has also deposed in a very categorical terms about the actual price rate of the commodities prevailing at that point of time in the area and the price list against the name of the commodity is mentioned in the tabular form of the document which was produced by him. The government approved private valuer was also engaged by the claimants and the said valuer has personally paid visit to the village and verified the position of the land and prepared a detailed report. The said valuer was also examined as a witness by the claimants. The defendants have cross-examined all those witnesses but nothing contrary has come out from the cross-examination of the said witness.
Page 14 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined The defendants have failed to disprove the evidence laid by the claimants. Therefore, after considering and appreciating the evidence available on record, the learned Judge has reached to a particular conclusion.
17. The said witness has also admitted in the cross- examination that he has not paid visit to the village, he has not seen the land which was acquired by the acquiring body and deposed on the strength of the evidence available on record. He has no personal knowledge about the actual position of the land. It is true that the said witness has clearly stated in the chief-examination that he has gone through the report of the Land Acquisition Officer and the Land Acquisition Officer has considered the sale agreement of previous five years and, thereafter, passed the award. He has not produced any material on the basis of which the Land Acquisition Officer has determined the value of the land. Per contra, learned advocate Mr. Chudasma has submitted that it is settled proposition of law that the reference preferred by the claimants would never be considered as an appeal and at the time of deciding the reference, material upon which reliance is being placed by the Land Acquisition Officer at the time of deciding the award, cannot be relied upon unless same is produced and proved. Admittedly, here in the case on hand, the officer who has examined on behalf of the defendant has deposed that he has gone through the report of the Land Acquisition Officer but has not produced any document to substantiate his claim. At this juncture we would like to put reliance upon the decision of the Apex Court in the case of Page 15 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined Chimanlal Hargovinddas (supra). Para-4 of the said judgment reads thus;
"The following factors must be etched on the mental screen:
(1) A reference under section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition officer in his Award unless the same material is produced and proved before the Court.
(2) So also the Award of the Land Acquisition officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the Court hearing the Reference. It is merely an offer made by the Land Acquisition officer and the material utilised by him for making his valuation cannot be utilised by the Court unless produced and proved before it. It is not the function of the Court to suit in appeal against the Award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition officer, as if it were an appellate court.
(3) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it.
(4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose.
(5) The market value of land under acquisition has to be determined as on the crucial date of publication of the notification under sec. 4 of the Land Acquisition Page 16 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined Act (dates of Notifications under secs. 6 and 9 are irrelevant).
(6) The determination has to be made standing on the date line of valuation (date of publication of notification under sec. 4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price.
(7) In doing so by the instances method, the Court has to correlate the market value reflected in the most comparable instance which provides the index of market value.
(8) only genuine instances have to be taken into account. (Some times instances are rigged up in anticipation of Acquisition of land).
(9) Even post notification instances can be taken into account (1) if they are very proximate,(2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects.
(10) The most comparable instances out of the genuine instances have to be identified on the following considerations:
(i) proximity from time angle,
(ii) proximity from situation angle.
(11) Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-a-vis land under acquisition by placing the two in juxtaposition.
(12) A balance-sheet of plus and minus factors may Page 17 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchaser would do.
(13) The market value of the land under acquisition has there after to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors (14) The exercise indicated in clauses (11) to (13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors:
Plus factors Minus factors
1. smallness of size. 1. largeness of area.
2. proximity to a road. 2. situation in the interior at
a distances from the Road.
3. frontage on a road. 3. narrow strip of land with
very small frontage compared
to depth.
4. nearness to 4. lower level requiring the
developed area. depressed portion to be filled
up.
5. regular shape. 5. remoteness from developed
locality.
6. level vis-a-vis land 6. some special
under acquisition disadvantageous factor which
would deter a purchaser.
7. special value for an
owner of an adjoining
property to whom it
may have some very
special advantage.
(15) The evaluation of these factors of course Page 18 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds cannot be compared with a large tract or block of land of say l000 sq. yds or more.
Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approx. between 20% to 50% to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be looked up, will be longer or shorter and the attendant hazards.
(16) Every case must be dealt with on its own facts pattern bearing in mind all these factors as a prudent purchaser of land in which position the Judge must place himself.
(17) These are general guidelines to be applied with understanding informed with common sense."
18. It appears that at the time of leading evidence, neither the claimants nor the opponents have produced deed of any sale transaction and, therefore, in the absence thereof, the learned Reference Court has rightly relied upon the evidence of agriculture income derived from the acquired land. In this regard, we would like to put reliance upon the decision in the case of Mulji Bhailalbhai Patel (supra). The relevant Page 19 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined observations made by the learned Single Judge of this Court in Paras-10 and 11 are as under;
"10. In view of the aforesaid discussion made in para 9 to 12, according to my opinion, in absence of Sale Deeds, Reference Court has rightly considered evidence of claimants, which has been produced before Reference Court and for that Reference Court has not committed any error, which requires interference of this Court. Learned Additional Government Pleader Mr. Trivedi heavily raised contention that for severance there is no evidence led by claimants and that the land in question after acquisition put in an adverse situation, his income has been decreased and value of land has also been decreased and agricultural expenses have been increased. He relied upon page 17 Schedule and submitted that in fact there is no severance because of acquisition and there was no small piece of land remained after acquisition but a sufficient land remained, which can be utilized independently for agricultural purpose. He referred item no. 5, where, sufficient land was remaining, which cannot be considered to be a severance because of acquisition.
11. I have considered his submissions and I have also considered evidence of appellant. Both witnesses, who have admitted that because of acquisition, land of claimant has become severance and for that no additional amount of compensation is awarded by Land Acquisition Officer. The figure which relied by learned Additional Government Pleader is as under, which is notified in item no. 5:
L.R. No. Remaining land
after acquisition
which is fragment
Page 20 of 33
Downloaded on : Sat Sep 16 22:13:18 IST 2023
NEUTRAL CITATION
C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023
undefined
1) 223 of 90 4-025-39
2) 224 of 90 3-92-47 & 3-24-82
3) 226 of 1990 4-41-34
19. We have gone through the record and proceedings of this Court and it is found out from the same that the claimants as well as defendants have not produced any documents in the form of sale transaction of the previous five years to prove the market value of the land. As the law propounded by our own High Court in the above stated judgment has crystallized that the learned land reference court has considered whatever evidence available on record and passed just, fair and reasonable order, we do not find any error in the view adopted by the land reference court.
20. For the purpose of determination of the compensation on the basis of yield, we would like to put reliance upon the decision in the case of Rama Rana (supra). Para-5 of the said judgment reads as under;
"It is undoubtedly true that one of the methods of determination of compensation, in the absence of best evidence, namely, sale deeds, is the realised value of the crop. Normally, they should have produced the statistics from the Agriculture Department as to the nature of the crops and the prices prevailing at that time. But unfortunately, neither claimants nor the Government took any steps to adduce that best evidence. It is a fact that the Government have failed to adduce any evidence in that behalf. However, we cannot reject the oral evidence of the witnesses on that ground alone. The court has statutory duty to the society to subject the oral evidence to great scrutiny, applying the test of Page 21 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined normal prudent man, i.e., whether he would be willing to purchase the land at the rates proposed by the Court. On the touch stone of this, the Court should evaluate the evidence objectively and dispassionately and reach a finding on compensation. The reference Court has accepted the evidence of the Sarpanch to be the reliable person. Therefore, we proceed on that premise. The appropriate multiplier should be of 10 years as settled by several judgments of this Court. Necessarily, 50% of the net value towards cultivation expenses requires to be deducted. The award of the reference Court as confirmed by the High court stands set aside and the value of the crop as determined by the reference Court at Rs.2,050/- as average annual income stands upheld. Multiplier of 10 years should be applied and deduction of 50% towards cultivation expenses should be made. After giving deduction, the balance will be the net value of the land. On the basis, the claimants are entitled to Rs. 20,500/- per acre with solatium @ 30% on enhanced compensation and interest on enhanced compensation @ 0.9% per annum for one year from the date of taking possession and 15% per annum till date of deposit into the court under the Act as amended by Act 68 of 1984, namely 30% solatium on the enhanced compensation, interest on the enhanced compensation from the date of taking possession for one year at 9% and thereafter at 15% till date of deposit."
21. We would also like to quote a decision rendered by the Hon'ble Apex Court in the case of V. Prabhakara vs. Basavaraj K. (Dead) by Legal Represetatives & Anr., reported in (2022) 1 SCC 115, wherein while discussing the issue with regard to scope of appeal and the powers of the High Court as the first appellate court, the Hon'ble Apex Court has held in Paras-21, 22 and 23 as under;
"21. A relief can only be on the basis of the Page 22 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined pleadings alone. Evidence is also to be based on such pleadings. The only exception would be when the parties know each other's case very well and such a pleading is implicit in an issue. Additionally, a court can take judicial note of a fact when it is so apparent on the face of the record. A useful reference can be made to the following passage in Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491:
"15. The relevant principle relating to circumstances in which the deficiency in, or absence of, pleadings could be ignored, was stated by a Constitution Bench of this Court in Bhagwati Prasad v. Chandramaul [AIR 1966 SC 735]: (AIR p. 738, para 10) "10. ... If a plea is not specifically made and yet it is cov- ered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court Page 23 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined cannot do injustice to another." (emphasis supplied) xxx xxx xxx "23 It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, grant of re- lief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppel, acquiescence, non-joinder of causes of action or parties, etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of rupees one lakh, the court can- not grant a decree for rupees ten lakhs. In a suit for recovery pos- session of property 'A', court cannot grant possession of property 'B'. In a suit praying for permanent injunction, court cannot grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc." (emphasis in original) Section 96:
22. The first appellate court while exercising power under Section 96 can re-do the exercise of the trial court. However, such a power is expected to be exercised with caution. The reason being, the trial court alone has the pleasure of seeing the demeanor of the witness. Therefore, it has got its own advantage in assessing the statement of the witnesses which may not be available to the appellate court. In exercising such a power, the appellate court has to keep in mind the views of the trial court. If it finds that the trial court is wrong, its decision should be on the reasoning given. A mere substitution of views, without discussing the findings of the trial court, by the appellate court is not permissible. If two views are possible, it would only be appropriate to go with the view expressed by the trial court. While adopting reasoning in support of its Page 24 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined findings, the appellate court is not expected to go on moral grounds alone.
23. The aforesaid views expressed by us are nothing but a reiteration of the settled principle of law as could be seen through the following paragraphs of the decision rendered by this Court in the case of Jagdish Singh v. Madhuri Devi, (2008) 10 SCC 497:
"27. It is no doubt true that the High Court was exercising power as first appellate court and hence it was open to the Court to enter into not only questions of law but questions of fact as well. It is settled law that an appeal is a continuation of suit. An appeal thus is a re-hearing of the main matter and the appellate court can re- appraise, re- appreciate and review the entire evidence - oral as well as documentary and can come to its own conclusion.
28. At the same time, however, the appellate court is expected, nay bound, to bear in mind a finding recorded by the trial court on oral evidence. It should not forget that the trial court had an advantage and opportunity of seeing the demeanor of witnesses and, hence, the trial court's conclusions should not normally be disturbed. No doubt, the appellate court possesses the same powers as that of the original court, but they have to be exercised with proper care, caution and circumspection. When a finding of fact has been recorded by the trial court mainly on appreciation of oral evidence, it should not be lightly disturbed unless the approach of the trial court in appraisal of evidence is erroneous, contrary to well- established principles of law or unreasonable.
29. Before more than a century, in Coghlan v. Cumberland [(1898) 1 Ch 704 (CA)] Lindley, M.R. pronounced the principle thus;
"Even where the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty Page 25 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined is to rehear the case, and the Court must reconsider the materials before the Judge with such other materials as it may have decided to admit. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the Court comes to the conclusion that the judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross- examined before the Judge, the Court is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the relative credibility of witnesses from written depositions and when the question arises which witness is to be believed rather than another; and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the Judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may shew whether a statement is credible or not; and these circumstances may warrant the Court in differing from the Judge, even on a question of fact turning on the credibility of witnesses whom the Court has not seen."
(See also observations of Lord Thankerton in Watt v. Thomas, [1947 AC 484])
30. In Sara Veeraswami v. Talluri Narayya [AIR 1949 PC 32] the Judicial Committee of the Privy Council, after referring to relevant decisions on the point, stated (Quoting from Watt v Thomas, [(1947) 1 All ER 582, pp.583 H-584 A]):
"...but if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This Page 26 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given."
31. This Court also, before more than half a century in Sarju Pershad v. Jwaleshwari, Pratap Narain Singh [AIR 1951 SC 120] stated: (AIR p. 121, para 8) "8. The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of oral evidence adduced in the case. In such cases, the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact."
32. Referring to several cases on the point, the Court concluded: (Sarju Pershad case, AIR p. 123, para 15):
"15. ...The duty of the appellate court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial court arrived at or whether there is an element of Page 27 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined improbability arising from proved circumstances which, in the opinion of the court, outweighs such finding." (emphasis supplied)
33. After about a decade, in Radha Prasad v. Gajadhar Singh [AIR 1960 SC 115] this Court reiterated: (AIR p. 123, para 15) "14. The position in law, in our opinion, is that when an appeal lies on facts it is the right and the duty of the appeal court to consider what its decision on the question of facts should be; but in coming to its own decision it should bear in mind that it is looking at the printed record and has not the opportunity of seeing the witnesses and that it should not lightly reject the trial Judge's conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanor of the witness in court. But this does not mean that merely because an appeal court has not heard or seen the witness it will in no case reverse the findings of a trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record. When it appears to the appeal court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the trial Judge is wrong, the appeal court should have no hesitation in reversing the findings of the trial Judge on such questions. Where the question is not of credibility based entirely on the demeanor of witnesses observed in court but a question of inference of one fact from proved primary facts the court of appeal is in as good a position as the trial Judge and is free to reverse the findings if it thinks that the inference made by the trial Judge is not justified."
34. In T.D. Gopalan v. Commissioner of Hindu Religious & Charitable Endowments [(1972) 2 SCC Page 28 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined 329], this Court said: (SCC p. 333, para 9):
"9. The High Court next proceeded to reproduce a summary of the statement of each of the witnesses produced by the defendants. No attempt whatsoever was made to discuss the reasons which the learned District Judge had given for not accepting their evidence except for a general observation here and there that nothing had been suggested in the cross- examination of a particular witness as to why he should have made a false statement. We apprehend that the uniform practice in the matter of appreciation of evidence has been that if the trial court has given cogent and detailed reasons for not accepting the testimony of a witness the appellate court in all fairness to it ought to deal with those reasons before proceeding to form a contrary opinion about accepting the testimony which has been rejected by the trial court. We are, therefore, not in a position to know on what grounds the High Court disagreed with the reasons which prevailed with the learned District Judge for not relying on the evidence of the witnesses produced by the defendants."
35. Yet in another decision in Madhusudan Das v. Narayanibai [(1983) 1 SCC 35], this Court said: (SCC pp. 39-40, para 8):
"8. ...At this stage, it would be right to refer to the general principle that, in an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to Page 29 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined where the credibility lies. ...The principle is one of practice and governs the weight to be given to a finding of fact by the trial court. There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the appellate court is entitled to interfere with the finding of fact."
(emphasis supplied)
36. Three requisites should normally be present before an appellate court reverses a finding of the trial court:
(i) it applies its mind to reasons given by the trial court;
(ii) it has no advantage of seeing and hearing the witnesses; and
(iii) it records cogent and convincing reasons for disagreeing with the trial court.
37. If the above principles are kept in mind, in our judgment, the decision of the High Court falls short of the grounds which would allow the first appellate court to reverse a finding of fact recorded by the trial court. As already adverted earlier, the High Court has 'virtually' reached a conclusion without recording reasons in support of such conclusion. When the court of original jurisdiction has considered oral evidence and recorded findings after seeing the demeanour of witnesses and having applied its mind, the appellate court is enjoined to keep that fact in mind. It has to deal with the reasons recorded and conclusions arrived at by the trial court. Thereafter, it is certainly open to the appellate court to come to its own conclusion if it finds that the reasons which weighed with the trial court or conclusions arrived at were not in consonance with law."
22. It is found out from the record that as per the Page 30 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined deposition of the claimants they were cultivating the said land and getting clear cut income of Rs.32,625/- from the crop of groundnut, Rs.32,812.50 Paisa from the crop of BT cotton, Rs.66,000/- from the crop of cumin and Rs.21,616.87/-from the crop of green gram (Moong). To substantiate their claim, the claimants have not produced any bills of sale and purchase of the seeds and fertilizers. The claimants have also not produced any evidence pertaining to expenditure carried out by them for the cultivation of the said crops. Only on the basis of 7/12 abstract, it can be derived that in the particular season and particular year, the farmer concerned was cultivating the particular crop. Except the 7/12 abstract, claimants have not produced any documents in support of their oral version. It is found out from the record that in the year 2001-02, only three of the claimants have cultivated the crop of cotton seed in a year, whereas other claimants have not cultivated the crop of cotton. It is clearly found out from the evidence of the witnesses that they were not cultivating the land three times in a year. In short, they were not yielding three season's crop in a year. In that event, the learned reference court has rightly considered and appreciated the evidence and held that the claimants were cultivating the land only for one season in a year and, accordingly, compensation was awarded. We do not find any error and perversity in the said findings of the reference court.
23. It is also found from the record that the government approved valuer's report was produced by the claimants. The said witness was also examined by the claimants and he has very categorically deposed that as per his opinion, the price Page 31 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined value of the Revenue Survey No. 437 is Rs.113/- per square meter. The said witness was cross-examined at length by the learned advocate for the defendants, but could not get success to disprove the evidence laid by the said witness. However, from the evidence of the said witness, it is found out that along with the report, the said valuer did not produce any evidence with regard to the fact that at the time of preparing the report, he had visited the other lands also and, therefore, the learned Reference Court has rightly held that on the basis of the said report, price hike cannot be awarded as claimed by the the claimants. At the time of deriving particular amount of the value of the land, the learned Judge has considered the materials available on record and opined that almost from all 7/12 abstracts, it is found out that all the claimants had cultivated the land by yielding crop of groundnut and as per the evidence, it can be safely opined that all the claimants were yielding the crop of groundnut once in a year and as per the deposition of the witnesses, they were yielding around 150 ton, i.e, 3000 kg groundnut in one acre area of land which comes to 4000 square meter. Thus, the claimants were getting 0.75 gram crop of groundnut per square meter, and as per the price list produced by the Jamnagar APMC, in the year 2001, price of groundnut was Rs.290/- per 20 kg and if a calculation is made on the basis of the said price, then the claimants were getting Rs.10.87/- per square meter which is rounded off at Rs.11/- per square meter. Out of the said amount, after deducting 50% amount towards the expenditures, the claimants were getting clear cut income of Rs.5.50/- per square meter. Upon multiplying the said amount Page 32 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023 NEUTRAL CITATION C/FA/121/2019 CAV JUDGMENT DATED: 20/07/2023 undefined with 10 (5.50x10), the claimants are entitled to get total compensation of Rs.55/- per square meter.
24. It is found out from the above judgment that as per Section 23 of the Land Acquisition Act, at the time of determination of the amount of compensation on the basis of yield, statistic from the agricultural department as to nature of crops and price prevailing at that time is produced, in that event, the evidence objectively and dispassionately to reach to a finding on compensation is required to be calculated by multiplying 10 to the price of the yield and deducting 50% towards the cultivation expenses should be made.
25. After considering and appreciating the materials as well as documentary evidence available on record, the Reference Court has precisely concluded and awarded the amount which does not require any interference as we have not found any illegality and infirmity in the impugned judgment and award. We are in full agreement with the view adopted by the learned Reference Court and convinced with the reasons assigned and findings given by the learned Reference Court and of the opinion that the impugned judgment and award does not warrant any interference at the end of this Court.
26. In the result, all the first appeals preferred by the State Government are hereby dismissed. Record and Proceedings be sent back to the concerned trial court forthwith.
(ASHUTOSH SHASTRI, J) (DIVYESH A. JOSHI,J) VAHID Page 33 of 33 Downloaded on : Sat Sep 16 22:13:18 IST 2023