Gujarat High Court
Geb vs Heirs Of Mayaram Sukhram, Anandram ... on 18 September, 2018
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/FA/1004/2002 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1004 of 2002
With
R/FIRST APPEAL NO. 1005 of 2002
With
R/FIRST APPEAL NO. 1006 of 2002
With
R/FIRST APPEAL NO. 1007 of 2002
With
R/FIRST APPEAL NO. 1008 of 2002
With
R/FIRST APPEAL NO. 1212 of 2002
With
R/FIRST APPEAL NO. 1213 of 2002
With
R/FIRST APPEAL NO. 1214 of 2002
With
R/FIRST APPEAL NO. 1215 of 2002
With
R/FIRST APPEAL NO. 1216 of 2002
With
R/FIRST APPEAL NO. 1217 of 2002
With
R/FIRST APPEAL NO. 1218 of 2002
With
R/FIRST APPEAL NO. 1219 of 2002
With
R/FIRST APPEAL NO. 1220 of 2002
With
R/FIRST APPEAL NO. 1221 of 2002
With
R/FIRST APPEAL NO. 1222 of 2002
With
R/FIRST APPEAL NO. 1223 of 2002
With
R/FIRST APPEAL NO. 1224 of 2002
With
R/FIRST APPEAL NO. 1225 of 2002
With
R/FIRST APPEAL NO. 1226 of 2002
With
R/FIRST APPEAL NO. 1227 of 2002
Page 1 of 44
C/FA/1004/2002 CAV JUDGMENT
With
R/FIRST APPEAL NO. 1228 of 2002
With
R/FIRST APPEAL NO. 1229 of 2002
With
R/FIRST APPEAL NO. 1230 of 2002
With
R/FIRST APPEAL NO. 1231 of 2002
With
R/FIRST APPEAL NO. 1232 of 2002
With
R/FIRST APPEAL NO. 1233 of 2002
With
R/FIRST APPEAL NO. 1234 of 2002
With
R/FIRST APPEAL NO. 1235 of 2002
With
R/FIRST APPEAL NO. 1236 of 2002
With
R/FIRST APPEAL NO. 1237 of 2002
With
R/FIRST APPEAL NO. 1238 of 2002
With
R/FIRST APPEAL NO. 1239 of 2002
With
R/FIRST APPEAL NO. 1240 of 2002
With
R/FIRST APPEAL NO. 175 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/-
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
Page 2 of 44
C/FA/1004/2002 CAV JUDGMENT
as to the interpretation of the Constitution of India or any NO
order made thereunder ?
==========================================================
GEB
Versus
HEIRS OF MAYARAM SUKHRAM, ANANDRAM MAYARAM
==========================================================
Appearance:
MS LILU K BHAYA(1705) for the PETITIONER(s) No. 1
MR KIRTIDEV R DAVE(3267) for the RESPONDENT(s) No. 1 in FA 1994,
1005, 1007 & 1008 of 2002
MR MP PRAJAPATI for the Respondent No.1 in FA No.1212 to 1240 of 2002
MR TIRTHRAJ PANDYA, AGP for the State
MR MANAV MEHTA for the Respondent No.1 in FA 175/2003
RULE SERVED(64) for the RESPONDENT(s) No. 2,3
==========================================================
CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 18/09/2018
CAV JUDGMENT
1. All these appeals, 35 in number, arise out of the two common awards dated 31.12.2001 and 20.2.2002 passed by the Second Joint Civil Judge, Senior Division, Surendranagar (hereinafter referred to as "the Reference Court"). First Appeal Nos.1004 of 2002 to 1008 of 2002 arise out of the common award dated 20.2.2002 passed by the Reference Court in LAR Case Nos.68 of 190 to 73 of 1990 (First Appeal Page 3 of 44 C/FA/1004/2002 CAV JUDGMENT No.1003 of 2003 arising out of the said common award has already been disposed of earlier by the Coordinate Bench vide the order dated 29.7.2008). First Appeal No.175 of 2003, and First Appeal Nos.1212 of 2002 to 1240 of 2002 arise out of the common award dated 31.12.2001 passed by the Reference Court in LAR Case Nos.33 of 1990 to 49 of 1990 and Nos.52 of 1990 to 64 of 1990.
2. Both the common awards pertain to the lands in question situated at Villages Chorania and Bhalgamda, Taluka Limbdi, District Surendranagar, which were acquired by the Government for the construction of 400 K.V. Sub- station for the Gujarat Electricity Board. The Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as "the said Act") was published in the Government Gazette on 14.4.1988 and in the newspapers on 15.3.1988 and 19.3.1988. The Notification under Section 6 of the said Act was published in the Government Gazette on 4.6.1989 and in the newspapers on 13.3.1989 and Page 4 of 44 C/FA/1004/2002 CAV JUDGMENT 20.3.1989. The Special Land Acquisition Officer passed the award on 2.4.1990 and had subsequently revised the same on 26.6.1990 in Case No.10 of 1987 in respect of the lands bearing Survey Nos.230 and 231 under Section 31(2) of the said Act.
3. The claimants being aggrieved by the said award, had sought Reference under Section 18 of the said Act, and therefore, all the cases were referred to the Reference Court, in respect of the lands covered under Schedule-C of the said award dated 2.4.1990 passed by the Land Acquisition Officer. It appears that the Reference Court had initially divided the said cases into two groups. First Group pertained to the LAR Case Nos.34 of 1990 to 64 of 1990 and the Second Group pertained to the LAR Case Nos.33 of 1990 and 68 of 1990 to 73 of 1990. It further appears that the LAR Cases of first group were consolidated in LAR Case No.34 of 1990 as per the order passed by the Reference Court on 15.3.2001 below Exh.28 and the LAR Cases of second group were consolidated in LAR Page 5 of 44 C/FA/1004/2002 CAV JUDGMENT No.33 of 1990 as per the order passed on 16.7.1996 below Exh.24. Thereafter, both the groups were consolidated as per the order passed on 20.9.2001 below Exh.68 and common evidence was permitted to be adduced by the respective parties. It further appears that subsequently the Reference Court, having found that the facts and circumstances in respect of LAR Case Nos.68 of 1990 to 73 of 1990 from the second group and LAR Case Nos.50 of 1990 and 51 of 1990 from the first group were different from the other cases, it ordered to separate the said cases from the rest of the cases. Accordingly, LAR Case Nos.33 of 1990 to 49 of 1990 and 52 of 1990 to 64 of 1990 were disposed of by the common award dated 31.12.2001, whereas the LAR Case Nos.68 of 1990 to 73 of 1990 were disposed of by separate common award dated 20.2.2002 (it may be noted that there is no reference of LAR Case Nos.50 of 1990 and 51 of 1990 in the award dated 20.2.2002, though the said two cases were clubbed with the LAR Case No.68 of 1990 to 73 of 1990).
Page 6 of 44 C/FA/1004/2002 CAV JUDGMENT
4. It is further pertinent to note that though the two groups were separated, the Reference Court awarded same amount of compensation to the tune of Rs.1,19,370/- per hectare with interest and solatium as mentioned in the award relying upon the same set of common evidence. The operative part of both the awards reads as under:-
"The Land Reference Cases are hereby partly allowed with proportionate costs. The claimants are entitled to get the amount of Rs.1,19,370/ per Hectare of the land. The opponents are directed to deduct the payment made to the claimants awarded by the LAO and remaining balance amount together with 30% solatium and running interest at the rate of 9% p.a., for the period of one year from the date of taking over the possession of the acquired land and thereafter at the rate of 15% p.a., till the entire amount is fully paid or deposited.
The claimants are also entitled to get interest at the rate of 12% p.a., from the date of publication of notification under Section 4(1) of the Act i.e. 14.4.1988 to the date of award passed by the Land Acquisition Officer i.e. 2.4.1990 as provided under Section 23(1A) of the Act. However, as the dispute for the apportionment of the awarded amount had arisen before the LAO, therefore, the references submitted to the District Court under Section 30 of the said Act, and thereafter it was decided by the Hon'ble District Court that there is no dispute in respect of apportionment as per Section 30 of the said Act and the said references were returned to the LAO, Surendranagar. During Page 7 of 44 C/FA/1004/2002 CAV JUDGMENT the pendency of the proceedings the dispute has been resolved by and between the parties outside the Court. Therefore, the claimants are not entitled for the interest during the period covered for dispute as provided in Section 30 of the said Act. The period covered for the dispute is pertaining to 26.6.1990 to 14.12.1993, therefore, the opponents do calculate the above period while calculating the interest over the additional compensation and he is hereby directed to deduct the same.
The opponents are hereby directed to calculate the interest on additional compensation as well as 30% solatium and increase at the rate of 12% p.a., in the light of recent pronouncement of the Apex Court of India reported in 2001(7) Supreme page 37 in the case of Sunder Vs. Union of India.
The claimants shall pay necessary court fees as per the undertaking given by them subject to the decision of the Hon'ble Supreme Court of India."
5. It may be stated that in Civil Application Nos.4199 of 2002 to 4227 of 2002 filed in First Appeal Nos.1212 of 2002 to 1240 of 2002, the Division Bench of this Court had vide the order dated 24.6.2002 granted ad-interim stay in terms of paragraph 3(B) of each of the Civil Applications on the condition that the applicant GEB (now Gujarat Energy Transmission Corporation Limited) shall deposit 50% of the amount to be paid under the award. Subsequently, vide the Page 8 of 44 C/FA/1004/2002 CAV JUDGMENT order dated 18.9.2002 the Division Bench had directed the applicant GEB to deposit the remaining 50% of the amount with the trial Court and further permitting the respondent claimants to withdraw 25% of the amount deposited by the application in cash without furnishing any security and 25% on furnishing adequate security to the satisfaction of the trial Court. The remaining amount of 50% was directed to be deposited with the nationalized bank on long term basis with cumulative effect specifying that the claimants shall not be entitled to get any periodical interest and that the said FDR shall be renewed from time to time till the outcome of the First Appeals. So far as the other group of First Appeals are concerned, the Court vide the order dated 6.4.2004 in Civil Application Nos.3653 of 2002 with 7877 of 2003 in First Appeal No.1004 of 2002 permitted the respondent claimants to withdraw 50% of the deposited amount and directed to invest the rest of the amount in FDR for a period of three years to be renewed from time to time till the disposal of the First Appeals. Similar orders Page 9 of 44 C/FA/1004/2002 CAV JUDGMENT were passed in other appeals also.
6. The reason for stating the basic facts in detail is that during the course of the final arguments it was brought to the notice of the Court by the learned Advocate Mr.K. R. Dave appearing for some of the claimants in First Appeal Nos.1004 of 2002 to 1008 of 2002 that some of the respondent claimants had already withdrawn the entire amount deposited by the appellant Company and invested in the FDR pursuant to the order passed by this Court, without the permission of the Court and though the appeals were pending for final disposal. Learned Advocate Ms.Lilu Bhaya for the appellant, therefore, had sought time to make inquiry with regard to the withdrawal of the amount, if any, made by the respondent claimants. She thereafter submitted the affidavit of one Brijeshkumar Popatbhai Prajapati, Junior Engineer (Civil) at Limbdi Civil Sub-station, stating inter alia that he had personally gone to the different banks and that it was found that the respondent claimants had withdrawn the Page 10 of 44 C/FA/1004/2002 CAV JUDGMENT money from the banks without the permission of the Court, as per the statement annexed with the affidavit. From the said statement annexed with the said affidavit it appears that most of the respondent claimants had withdrawn the amount of the FDR in the year 2013 without any permission from the Court. The said issue being serious will be dealt with later on.
7. At this juncture, it may be noted that the First Appeal Nos.1212 of 2002 to 1240 of 2002 were dismissed by the Court for non-prosecution vide the order dated 15.2.2011, however, the same were restored vide the order dated 25.3.2011 as per the order passed in Misc. Civil Application (for restoration) Nos.749 of 2011 to 777 of 2011 filed in the said appeals.
8. So far as the merits of the appeals are concerned, as stated herein above, the Reference Cases were disposed of by two separate common awards though ultimately awarding the same amount of compensation in all cases. It also appears that the common evidence, oral as well as documentary, in both the groups, was produced Page 11 of 44 C/FA/1004/2002 CAV JUDGMENT in Case No.34 of 1990 of first group and subsequently the copies thereof were produced in the second group. So far as the oral evidence in the first group was concerned, the claimants had examined the claimants Sukhdevsinh Jivubha Rana at Exh.84, Narpatsinh Fatehsinh at Exh.85, Juvanisinh Sabalsinh at Exh.98 and Parvinsinh Jeebuva at Exh.101, and had adduced documentary evidence with regard to the revenue receipts and certificates issued by the Talati-cum-Mantri in respect of some of the lands in question. The appellant, who was opponent in the Reference Cases had laid oral evidence by examining one Jeevanlal Shantilal, Talati-cum-Mantri of Village Chorania at Exh. 103 and adduced documentary evidence by producing sale deeds at Exh.106 to 114 in respect of the lands situated nearby the lands acquired and the map of the Simada of Village Bhalgamada at Exh.115. The Reference Court, while appreciating the evidence on record, did not rely upon the sale instances adduced by the appellant (original opponent) and proceeded to award compensation following yield method for the purpose of determining the market Page 12 of 44 C/FA/1004/2002 CAV JUDGMENT value of the lands in question. Accordingly, Reference Court awarded the compensation at the rate of Rs.1,19,370/- per hectare with the interest and solatium as mentioned therein.
9. Learned Advocate Ms.Bhaya appearing for the appellant made following submissions:-
(i) There were three classes of lands. One class of lands touching National Highway No.8, the second class of lands situated in the middle portion i.e. neither near the Kachcha Cart Road, nor near the National Highway No.8 and the third class of lands having access to Kuchcha Cart Road, however, the Reference Court had awarded same compensation for all lands without considering their location, fertility and accessibility to the national highway.
(ii) The appellant had produced the sale instances of the nearby area of the lands acquired, however, the same have not been taken into consideration by the Reference Court. Relying upon the decision of the Page 13 of 44 C/FA/1004/2002 CAV JUDGMENT Supreme Court in case of Ranvir Singh and Anr. Vs. Union of India, reported in (2005) 12 SCC 59, she submitted that the respondent claimants did not object against the admissibility of the sale deeds, when they were marked as exhibits, and therefore, such sale deeds could not be discarded on the ground that the concerned parties to the transaction were not examined.
(iii) Relying upon another decision of the Supreme Court in case of Cement Corporation of India Limited Vs. Purya and Ors., reported (2004) 8 SCC 270, she submitted that the contents of the documents produced under Section 51(A) of the Land Acquisition Act should be treated as the conclusive proof of transaction contained therein and the Court can rely upon such transactions for the purpose of determining the compensation in land acquisition cases.
(iv) Reliance was placed on the decision of the Supreme Court in case of Land Acquisition Officer (Revenue Divisional Officer), Page 14 of 44 C/FA/1004/2002 CAV JUDGMENT Nalgonda (A.P.) Vs. Morisetty Satyanarayana and Ors., reported in (2002) 10 SCC 570 to submit that where the lands covered under several different survey numbers are acquired, the most relevant piece of evidence would be the sale deeds pertaining to the portions of land belonging to the same survey number executed prior to the notification under Section 4.
(v) The Land Acquisition Officer had duly considered various sale deeds in respect of the adjacent lands, in the light of the nature of the land, fertility of the land, and other relevant factors, which should not have been disturbed by the Reference Court.
(vi) There was no documentary evidence laid by the claimants to show that the lands were Bagayat (irrigated) lands, more particularly when the Land Acquisition Officer had observed that there were no pipelines or Kundi available at the lands, and when the appellant had examined the witness Jeevanlal Shantilal at Exh.103, who had also stated Page 15 of 44 C/FA/1004/2002 CAV JUDGMENT that there was no irrigation facility available and that the village in which the lands were situated was 5 kms away from the city and that the crop was being taken only once a year.
(vii) The claimants had to discharge the burden to prove by placing material on record that the land acquired and the land covered by the sale transactions were not similar or were having different potentiality as held by the Supreme Court in case of P. Ram Reddy and Ors. Vs. Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad and Ors., reported in (1995) 2 SCC 305.
(viii) Relying upon the details demonstrated in the chart submitted by her and the map and the sale deeds produced before the Reference Court at Exh. 108 to 113, she elaborately submitted by giving instances that the Reference Court had committed an error in treating all lands equal.
According to her, in case of Pravinsinh Page 16 of 44 C/FA/1004/2002 CAV JUDGMENT Jitubha Rana of Reference Case No.33 of 1990, whose land bearing Survey No.211 paiki was acquired, the Land Acquisition Officer had fixed the compensation at the rate of Rs.0.40 per sq. mtrs., whereas the Reference Court has fixed it at Rs.11.93 per sq. mtrs., though it was specifically brought to the notice of the Reference Court that identically situated land bearing Survey No.212, which did not have direct access, was sold in March 1984 for Rs.0.25 per sq. mtrs., and the land bearing Survey No.207 paiki was sold in May 1986 for Rs.0.37 per sq. mtrs., and the land bearing Survey No.214 paiki was sold in September 1986 for Rs.0.41 per sq. mtrs.
(ix) The Reference Court had also committed apparent error in making calculation with regard to the measurements of the lands, inasmuch as the area of one hectare of land would actually mean 6.17 bighas, whereas the Reference Court has treated one hectare equal to 6.25 bighas and accordingly arrived Page 17 of 44 C/FA/1004/2002 CAV JUDGMENT at a figure of Rs.1,19,370/-, instead of Rs.1,07,970/- per hectare.
10. Learned Advocates Mr.K. R. Dave, Mr.Prajapati, and Ms.Jainy Shah for Mr.Manav Mehta for the respondent claimants have made following submissions:-
(i) The claimants in 25 appeals out of the 30 appeals from the first group of appeals have already withdrawn the full amount of compensation from the bank and only the claimants in First Appeal Nos.1004 of 2002 to 1008 of 2002 have not withdrawn the amount directed to be deposited in the FDR.
One of the appeals of the group being First Appeal No.1003 of 2002 has already been disposed of earlier by the Court on 29.7.2008, and therefore, the Court should not disturb the awards in question.
(ii) The sale instances relied upon by the appellant were not of nearby area and of the same year, in which Section 4 Notification was issued.
Page 18 of 44 C/FA/1004/2002 CAV JUDGMENT
(iii) The sale deeds produced before the Reference Court were not duly proved by the appellant and the same were produced after the evidence of the claimants was over.
(iv) The production of map was not sufficient to prove the exact location of the lands in question. All the lands in question were situated near the National highway and were acquired as one unit for the construction of the power station.
(v) The lands were the source of livelihood for the claimants and the Reference Court had rightly awarded the compensation relying upon the evidence of the claimants that they were taking crops thrice a year.
(vi) Relying upon the decisions of the Supreme Court in case of Nelatur Sampoornamma Vs. Special Deputy Collector, reported in 2017(8) Scale 66, and in case of K. Subbarayudu Vs. Special Deputy Collector, reported in 2017(8) Scale 61, it was submitted that awarding compensation on the Page 19 of 44 C/FA/1004/2002 CAV JUDGMENT yield basis is the proper and appropriate method for determining the compensation.
11. At the outset, it may be stated that the law is well settled as regards the methods for ascertaining the market value of the lands acquired. As back as in 1984, the Supreme Court in case of Special Land Acquisition Officer, Davangere Vs. P. Veerabhadarappa etc. etc., reported in AIR 1984 SC 774 held as under:-
"7. The function of the Court in awarding compensation under the Act is to ascertain the market value of the land at the date of the notification under Section 4 (1) of the Act and the methods of valuation may be :
(i) Opinion of experts. (2) The prices paid within a reasonable time in bona fide transactions of purchase or sale of the lands acquired or of the lands adjacent to those acquired and possessing similar advantages. And (3) A number of years' purchase of the actual or immediately prospective profits of the lands acquired.
Normally, the method of capitalising the actual or immediately prospective profits or the rent of a number of years' purchase should not be resorted to if there is evidence of comparable sales or other evidence for computation of the market value. It can be resorted to only when no other method is available.
8. It is axiomatic that the best evidence to prove what a willing purchaser would pay for the land under acquisition would be the Page 20 of 44 C/FA/1004/2002 CAV JUDGMENT evidence of sales of comparable properties, proximate in time to the date of acquisition, similarly situate, and possessing the same or similar advantages and subject to the same or similar disadvantages. Market value is the price the property may fetch in the open market if sold by a willing seller unaffected by the special needs of a particular purchase. Where definite material is not forthcoming either in the shape of sales of similar lands in the neighbourhood at or about the date of notification under S. 4 (1) or otherwise, the Court has no other alternative but to fall back on the method of valuation by capitalization. In valuing land or an interest in land for purposes of land acquisition proceedings, the rule as to number of years' purchase is not a theoretical or legal rule but depends upon economic factors such as the prevailing rate of interest in money investments. The return which an investor will expect from an investment will depend upon the characteristic of income as compared to that of idle security. The main features are: (1) Security of the income: (2) fluctuation: (3) chances of increase: (4) cost of collection etc. The most difficult and yet the most important and crucial part of the whole exercise is the determination of the reasonable rate of return in respect of investment in various types of properties. Once this rate of return and accordingly the rate of capitalization are determined, there is no problem in valuation of the property."
12. In case of Basant Kumar and Ors. Vs. Union of India and Ors., reported in (1996) 11 SCC 542, while negating the application of the Doctrine of equality in determination and payment of same compensation to all claimants covered by same Page 21 of 44 C/FA/1004/2002 CAV JUDGMENT notification, it was held as under:-
"5. ... It is common knowledge that even in the same village, no two lands command same market value. The lands abutting main road or national highway command higher market value and as the location goes backward, market value of interior land would be less even for same kind of land. It is a settled legal position that the lands possessed of only similar potentiality or the value with similar advantages offer comparable parity of the value; It is common knowledge that the lands in the village spread over the vast extent. In this case, it is seen that land is as vast as admeasuring 1669 bighas, 18 biswas of land in the village. So, all lands cannot and should not be classified as possessed of same market value. Burden is always on the claimant to prove the market value and the Court should adopt realistic standards and pragmatic approach in evaluation of the evidence. No doubt, each individual have different parcels of the land out of that vast land. If that principle is accepted, as propounded by the High Court, irrespective of the quality of the land, all will be entitled to the same compensation. That principle is not the correct approach in law. The doctrine of equality in determination and payment of same compensation for all claimants involved in the same notification is not good principle acceptable for the aforestated reasons. When both the lands are proved to be possessed of same advantages, features etc., then only equal compensation is permissible."
13. In Viluben Jhalejar Contractor Vs. State of Gujarat, reported in (2005) 4 SCC 789, the Supreme Court had laid down following principles Page 22 of 44 C/FA/1004/2002 CAV JUDGMENT for determination of market value of the acquired land:-
"17. Section 23 of the Act specifies the matters required to be considered in determining the compensation; the principal among which is the determination of the market value of the land on the date of the publication of the notification under sub section (1) of Section 4.
18. One of the principles for determination of the amount of compensation for acquisition of land would be the willingness of an informed buyer to offer the price therefor. It is beyond any cavil that the price of the land which a willing and informed buyer would offer would be different in the cases where the owner is in possession and enjoyment of the property and in the cases where he is not.
19. Market value is ordinarily the price the property may fetch in the open market if sold by a willing seller unaffected by the special needs of a particular purchase. Where definite material is not forthcoming either in the shape of sales of similar lands in the neighbourhood at or about the date of notification under Section 4(1) or otherwise, other sale instances as well as other evidences have to be considered.
20. The amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors visà vis the land under acquisition by placing the two in juxtaposition."
14. In Karnatak Urban Water Supply and Drainage Page 23 of 44 C/FA/1004/2002 CAV JUDGMENT Board Vs. K. S. Gangadharappa, reported in (2009) 11 SCC 164, the Supreme Court with a view to minimize the element of speculation while taking into consideration the comparable sales, laid down as under:-
"8. It can be broadly stated that the element of speculation is reduced to minimum if the underlying principles of fixation of market value with reference to comparable sales are made:
(i) when sale is within a reasonable time of the date of notification under Section 4(1);
(ii) it should be a bona fide transaction;
(iii) it should be of the land acquired or of the land adjacent to the land acquired; and
(iv) it should possess similar advantages."
15. At this juncture, it may be noted that in order to overcome the practical difficulties of examining the concerned persons i.e. the sellers and the buyers of the transactions mentioned in the sale deeds, relied upon either by the State or by the claimants, Section 51-A was introduced in the said Act, which reads as under:-
"51A. Acceptance of certified copy as evidence In any proceeding under this Act, a certified copy of a document registered under the Registration Act, 1908, including Page 24 of 44 C/FA/1004/2002 CAV JUDGMENT a copy given under section 57 of that Act, may be accepted as a evidence of the transaction recorded in such document."
16. The said provision has been interpreted by the Supreme Court in various decisions. While examining the scope of Section 51-A and the evidentiary value of the documents produced relying upon the said provision, Larger Bench comprising of Five Judges of the Supreme Court in case of Cement Corporation of India Limited Vs. Purya and Ors., reported in (2004) 8 SCC 270 held as under:-
"22.In the ordinary course a deed of sale is the evidence of a transaction by reason whereof for a consideration mentioned therein the title and interest in an immovable property specified therein is transferred by the vendor to the vendee. Genuineness of such transaction may be in question. In a given situation the quantum of consideration or the adequacy thereof may also fall for adjudication. The Courts, more often than not, are called upon to consider the nature of the transaction. Whenever a transaction evidenced by a sale deed is required to be brought on record, the execution thereof has to be proved in accordance with law. For proving such transaction, the original sale deed is required to be brought on record by way of primary evidence. Only when primary evidence is not available, a certified copy of the sale deed can be taken on record. Such certified copies evidencing any transaction are admissible in evidence, if the Page 25 of 44 C/FA/1004/2002 CAV JUDGMENT conditions precedent therefor in terms of Section 75 of the Indian Evidence Act are fulfilled. The transaction evidenced by the sale deed must be proved in accordance with law.
23. Evidences are of different types. It may be direct, indirect or real evidence. The existence of a given thing or fact is proved either by its actual production or by the testimony or admissible declaration of someone who has himself perceived it. Such evidence would be direct evidence. Presumptive evidence which is an indirect evidence would mean that when other facts are, thus, proved, the existence of the given fact may be logically inferred. Although the factum probandum and the factum probantia connote direct evidence, the former is superior in nature.
24. The terms 'primary and secondary evidence' apply to the kinds of proof that may be given to the contents of a document, irrespective of the purpose for which such contents, when proved, may be received. Primary evidence is an evidence which the law requires to be given first; secondary evidence is evidence which may be given in the absence of that better evidence when a proper explanation of its absence has been given. However, there are exceptions to the aforementioned rule.
25. Section 51A of the Land Acquisition Act seeks to make an exception to the aforementioned rule.
26. In the acquisition proceedings, sale deeds are required to be brought on records for the purpose of determining market value payable to the owner of the land when it is sought to be acquired.
27. Although by reason of the aforementioned provision the parties are free to produce original documents and prove the same in accordance with the terms of the rules of evidence as envisaged under the Indian Page 26 of 44 C/FA/1004/2002 CAV JUDGMENT Evidence Act,, the L.A. Act provides for an alternative thereto by inserting the said provision in terms whereof the certified copies which are otherwise secondary evidence may be brought on record evidencing a transaction. Such transactions in terms of the aforementioned provision may be accepted in evidence. Acceptance of an evidence is not a term of art. It has an etymological meaning. It envisages exercise of judicial mind to the materials on record. Acceptance of evidence by a court would be dependent upon the facts of the case and other relevant factors. A piece of evidence in a given situation may be accepted by a court of law but in another it may not be.
28. Section 51A of the L.A. Act may be read literally and having regard to the ordinary meaning which can be attributed to the term 'acceptance of evidence' relating to transaction evidenced by a sale deed, its admissibility in evidence would be beyond any question. We are not oblivious of the fact that only by bringing a documentary evidence in the record it is not automatically brought on the record. For bringing a documentary evidence on the record, the same must not only be admissible but the contents thereof must be proved in accordance with law. But when the statute enables a court to accept a sale deed on the records evidencing a transaction, nothing further is required to be done. The admissibility of a certified copy of sale deed by itself could not be held to be inadmissible as thereby a secondary evidence has been brought on record without proving the absence of primary evidence. Even the vendor or vendee thereof is not required to examine themselves for proving the contents thereof. This, however, would not mean that contents of the transaction as evidenced by the registered sale deed would automatically be accepted. The legislature advisedly has used the word 'may'. A discretion, Page 27 of 44 C/FA/1004/2002 CAV JUDGMENT therefore, has been conferred upon a court to be exercised judicially, i.e., upon taking into consideration the relevant factors.
29. In V.Narasaiah's case, this Court correctly understood the said scope and object of insertion of Section 51A in the L.A. Act when it held thus :
"It was in the wake of the aforesaid practical difficulties that the new Section 51A was introduced in the L.A. Act. When the section says that certified copy of a registered document "may be accepted as evidence of the transaction recorded in such document"
it enables the court to treat what is recorded in the document, in respect of the transactions referred to therein, as evidence."
30. While coming to the above conclusion in Narasaiah's case, this Court found support from similar provisions in the other statutes like Section 293 of the Code of Criminal Procedure which enables the court to use report of a Government Scientific Expert as evidence in any enquiry, trial or proceeding under the said Code, even without examining any person as a witness in a court for that purpose. Notice was also taken of Section 13(5) of the Prevention of Food Adulteration Act pertaining to the report of a Public Analyst which says that any document purporting to be a report signed by a Public Analyst may be used as evidence of the fact stated therein in any proceeding under the said Act. In Narasaiah's case, this Court also relied on a judgment of the Constitution Bench of this Court in Mangaldas Raghavji Ruparel & Anr. Vs. State of Maharashtra & Anr. (AIR 1966 SC 128) which held thus:
"that subsection clearly makes the contents of the report of Public Analyst admissible in evidence and the Page 28 of 44 C/FA/1004/2002 CAV JUDGMENT prosecution cannot fail solely on the ground that the Public Analyst had not been examined in the case, but what value is to be attached to such report must necessarily be for the court to consider and decide."
31. Thus, the reasoning of this Court in Narasaiah's case that Section 51A enables the party producing the certified copy of a sale transaction to rely on the contents of the document without having to examine the vendee or the vendor of that document is the correct position in law. This finding in Narasaiah's case is also supported by the decision of this Court in the case of Mangaldas Raghavji Ruparel (supra).
32. Therefore, we have no hesitation in accepting this view of the court in the Narasaiah's case as the correct view."
17. In the light of the afore-stated legal position, the evidence laid by both the parties is required to be appreciated. So far as the evidence of the respondent - claimants was concerned, they had examined four claimants namely Sukhdevsinh Jivubha Rana, Narpatsinh Fatehsinh, Juvanisinh Sabalsinh and Parvinsinh Jeebuva and had adduced certain documentary evidence to prove their respective claims. The appellant had examined one Jeevanlal Shantilal, who happened to be the Talati-cum-Mantri of Village Chorania. It appears that after the oral evidence was over, the appellant had sought Page 29 of 44 C/FA/1004/2002 CAV JUDGMENT to produce the copies of the sale instances of the nearby area of the acquired lands, along with the list Exh.105. The learned Advocate for the respondents - claimants having endorsed "no objection for exhibiting the same, subject to their contentions", they were exhibited as Exh.106 to 114. Similarly, the respondents - claimants had produced the copies of Village Form 7/12 of some of the claimants along with the list at Exh.124, on which the learned AGP had endorsed no objection for exhibiting the same. Accordingly, the said documents were exhibited as Exh.125 to 128.
18. The claimant Sukhdevsinh Jivubha Rana examined at Exh.84 had stated in his evidence that his land was situated in the village Chorania and that the acquired lands were fertile and Bagayat lands. The claimants were taking crops three times in a year and there were also pipelines laid in the lands. He had further stated that all lands were of the same nature and they were wrongly grouped in three groups. According to him, the claimants were entitled to the Page 30 of 44 C/FA/1004/2002 CAV JUDGMENT compensation at the rate of Rs.50,000/- per Bigha. In the cross-examination, he had admitted that there was no irrigation facility, no wells and no pipelines in the acquired lands, of course, he had denied that the claimants were taking crops only once in a year. He had admitted that he had no evidence to show that the claimants were yielding Rs.70,000/- to 80,000/- per year per Bigha. He had also admitted that the claimants had not obtained any certificate from the expert with regard to the fertility of the acquired lands. He had also admitted that there was no Government Hospital and that the School also had classes up to 5th Standard in Village Chorania.
19. It may be noted that after the evidence of said Sukhdevsinh Jivubha Rana was over, he had submitted an application at Exh.86, seeking amendment in the Reference Case stating inter alia that they had claimed additional compensation at the rate of Rs.50,000/- per Bigha, however, due to typographical mistake it was stated as Rs.50,000/- per Acre. The Page 31 of 44 C/FA/1004/2002 CAV JUDGMENT Reference Court had allowed the said amendment as per the order dated 29.8.2001 passed on the said application.
20. The claimant Narpatsinh Fatehsinh examined at Exh.85 and the claimant Juvansinh Sababsinh examined at Exh.76 also belonged to the village Chorania and had deposed almost on the same lines as the deposition of claimant Sukhdevsinh Jivubha Rana. Both had admitted in the cross- examination that they had not obtained any certificate to show the fertility of their lands, and that they did not have any document to show the income and expenditure in respect of their lands. They also admitted that their village did not have the hospital and the school was only up to fifth standard. The claimant Pravinsinh J. Rana examined at Exh. 101 belonged to the village Bhalgamda. He had stated that he was irrigating the land bearing Survey No.263 by laying the pipelines from the well, in respect of which his father had taken loan from the Land Development Bank, the certificate of which was produced on record at Exh.102. In the cross- Page 32 of 44 C/FA/1004/2002 CAV JUDGMENT examination, he had admitted that he did not have any personal knowledge and did not have any document to show that the loan was taken for laying the pipeline in his land.
21. So far as the evidence of Jeevanlal Shantilal, Talati-cum-Mantri of Village Chorania (Exh.103) examined by the appellant (opponent in the Reference Cases) is concerned, he had stated inter alia that the acquired lands were of Jirayat type and there was no irrigation facility in the said lands. The claimants were taking crop only once in monsoon. The village Chorania was 5 kms away from Limbdi and the population of the said village Chorania was about 900 people. There was one school up to 5th Standard and there was no hospital in the said village. There was no factory and the electric facilities were made available only in last two years. The national highway was touching the acquired lands. In the cross-examination, he had admitted that he was deposing on the basis of the record and that he was not working as Talati-cum-Mantri when the lands were acquired. Page 33 of 44 C/FA/1004/2002 CAV JUDGMENT He denied that the lands were of fertile nature. He had stated that the present market value (i.e. in the year 2001 at the time of giving deposition) was Rs.50,000/- per Bigha. He further admitted that there were petrol pumps and hotels nearby the acquired lands and that the acquired lands were of the Narmada Canal.
22. The copies of the registered sale instances produced by the appellants at Exh.106 to 114 before the Reference Court were in respect of the lands situated in the sim of Village Chorania. It appears that the sale deed at Exh.106 was registered in June 1983 in respect of the land bearing Survey No.246, admeasuring 2 acres 11 gunthas for Rs.7,000/-. The sale deed at Exh.107 was registered in January 1984 in respect of the land bearing Survey No.100 paiki, admeasuring 2 acres 36 gunthas for Rs.2,500/-. The sale deed at Exh.108 was registered in March 1984 in respect of the land bearing Survey No.212, admeasuring 5 acres 4 gunthas for Rs.6,000/-. The sale deed at Exh.109 was registered in February 1984 in respect of the Page 34 of 44 C/FA/1004/2002 CAV JUDGMENT land bearing Survey No.221, admeasuring 2 acres 12 gunthas for Rs.5,000/-. The sale deed at Exh.110 was registered in June 1984 in respect of the land bearing Survey No.308, admeasuring 1 acre 4 gunthas for Rs.7,000/-. The sale deed at Exh.111 was registered in May 1984 in respect of the land bearing Survey No.8 paiki, admeasuring 3 acres 8 gunthas for Rs.10,000/-. The sale deed at Exh.112 was registered in January 1985 in respect of the land bearing Survey No.30, admeasuring 3 acres 32 gunthas for Rs.6,000/-. The sale deed at Exh.113 was registered in May 1986 in respect of the land bearing Survey No.191, admeasuring 5 acres 19 gunthas for Rs.5,000/- and the sale deed at Exh.114 was registered in May 1986 in respect of the land bearing Survey No.207 paiki, admeasuring 2 acres 00 gunthas for Rs.3,000/-. The map of the sim of village Bhalgamda was produced at Exh.115. The respondents - claimants had produced the extracts of Village Forms No.7/12 and Form No.6 in respect of some of the lands in question, however, the concerned claimants had not produced any documents to show the fertility of Page 35 of 44 C/FA/1004/2002 CAV JUDGMENT lands, the income derived therefrom or the expenditure incurred thereon. None of the documents show that they were taking crops more than once in a year. The claimants have also not stated anything in their respective oral evidence with regard to the documents or the copies of Village Forms produced by them.
23. As stated earlier, the Reference Court has awarded compensation at the same rate of 1,19,370/- per hectare, though the Court itself had divided the lands in question into three groups. From the evidence on record, it clearly transpires that a vast area of land was acquired from Village Chorania and Bhalgamda, Taluka Limbdi, District Surendranagar as per the Notification under Section 4 published on 14.4.1988. It can not be gainsaid that as per the legal position settled by the Supreme Court, even in the same Village, no two lands command same market value. The lands appurtenant to the main road of national highway command higher market value and as the location goes backward, the market value of internal land would be less Page 36 of 44 C/FA/1004/2002 CAV JUDGMENT even for the same kind of land. When the lands in a Village spread over the vast extent, all lands can not be and should not be classified as possessing the same market value. The burden is always on the claimants to prove the market value. Beneficial reference of the decision in case of Basant Kumar and Ors. Vs. Union of India and Ors. (supra) be made in this regard. As discussed herein above, there was no evidence whatsoever to suggest that all lands acquired under the same Notification dated 14.4.1988 had the same location, and possessed the similar potentiality and similar advantages. On the contrary, as transpiring from the map Exh.115, it appears that some of the lands were located nearby the State highway, and the others in the internal side. As held by Supreme Court in case of Viluben Jhalejar Contractor Vs. State of Gujarat (supra), comparable instance has to be identified having regard to the proximity from time angle as well as from situation angle. In the instant cases, the Reference Court had failed to undertake the said exercise. Hence, in the opinion of the Court, the Reference Court Page 37 of 44 C/FA/1004/2002 CAV JUDGMENT has committed a blunder in awarding the compensation at the same rate to all the lands in question, without considering the location, potentiality, fertility and nature of lands in question group-wise.
24. The further error apparent on the face of record committed by the Reference Court is making guess work for determining the amount of compensation. The Reference Court while not relying upon the sale instances produced by the appellant at Exh.105 to 114 and also while holding that the claimants had failed to produce any material as regards the income derived or expenses incurred on the lands in question, as also that the claimants had failed to produce any documents to show that they were taking crops thrice in a year, the Reference Court had committed an error in making wild guess as regards the net income of the claimants. It is axiomatic that the reliance on the sale instances of the adjacent lands executed during or around the period of the issuance of Notification under Section 4 is preferred method of ascertaining valuation than Page 38 of 44 C/FA/1004/2002 CAV JUDGMENT the method of capitalization. In the instant cases, the Reference Court discarding both the methods and the evidence adduced by both the parties, proceeded to award compensation by merely making guess work. Surprisingly, while making guess work, again the Reference Court relied upon the oral evidence of the claimants to the effect that they used to take crops trice in a year and that the lands were situated near the national highway and had direct approach to the State highway, despite the fact that in the cross-examination, the concerned claimants had admitted that they had not produced any evidence in support of their claim that their lands were fertile or that they were taking crops three times in a year. They had categorically admitted that there was no hospital in the said village and they had school only up to 5th Standard and there were no factories in the village. Meaning thereby, the village where the lands were situated was an undeveloped village. The said village Chorania was 5 kms away from Taluka Limbdi and had the population of only 900 people. The Reference Court had also thoroughly Page 39 of 44 C/FA/1004/2002 CAV JUDGMENT misread the cross-examination of witness Jivanlal Shantilal, examined by the appellant, by observing that he had admitted that there was irrigation facility and well available to the land in question. If the deposition of the said witness is closely seen, he had categorically denied the said suggestion. Thus, not only that the Reference Court has ignored the settled legal position, the findings arrived at by the Reference Court for making even the guess work had no basis whatsoever.
25. The Reference Court discarded the evidence of sale instances adduced by the appellant on the ground that they were not comparable or reliable and that the contents thereof were not duly proved. It is true that the appellant had produced the copies of the sale deeds and not examined the concerned sellers and buyers, nonetheless all the said sale deeds were already produced before the Land Acquisition Officer, and when they were sought to be produced before the Reference Court, the concerned Advocate for the respondent - claimants had endorsed his no Page 40 of 44 C/FA/1004/2002 CAV JUDGMENT objection for giving exhibit numbers, without prejudice to his contentions. In absence of any evidence adduced by the claimants to the contrary, the Reference Court could have taken the said sale instances as the basis for determining the market value, which were executed about two years prior to the issuance of Notification under Section 4, by suitably increasing the market value, instead of making wild guess work without any basis for awarding compensation at the rate of Rs.1,19,370/- per hectare.
26. At this juncture, it is also pertinent to note that the Reference Court had committed further error apparent on the face of record by determining the net income from the land at Rs.1,750/- per Bigha and then multiplying with 6.25 holding that one hectare of land consists of 6.25 Bigha, whereas in fact one hectare consists of 6.17 Bigha. Hence, as rightly pointed out by Ms.Bhaya the award also suffers from miscalculation of the area as mentioned by the Reference Court, holding one hectare equal Page 41 of 44 C/FA/1004/2002 CAV JUDGMENT to 6.25 Bigha instead of 6.17 Bigha.
27. In view of the above, the Court is of the opinion that the impugned awards passed by the Reference Court suffers from many lapses and errors apparent on the face of record and have been passed dehors the legal position settled by the Supreme Court for determining the market value of the lands acquired under the Land Acquisition Act. Hence, the impugned awards deserve to be quashed and set aside, and the matters are required to be remanded to the Reference Court for deciding them afresh and in the light of evidence on record and in accordance with law.
28. As stated earlier, it was brought to the notice of the Court by the learned Advocate Mr.K. R. Dave for some of the respondents that most of the respondents, except his clients had withdrawn the full amount of compensation from the concerned Banks though this Court had passed interim orders for investment pending these appeals. The Court, therefore, had directed the learned Advocate Ms.Bhaya for the appellant to Page 42 of 44 C/FA/1004/2002 CAV JUDGMENT verify the position. Ms.Bhaya had tendered an affidavit of one Brijeshkumar Popatbhai Prajapati, Junior Engineer (Civil) at Limbdi Civil Sub-station on 15.6.2018. He had stated inter alia that he had personally gone to different banks and collected data, which showed that the concerned respondent - claimants had withdrawn the money from the banks, without the permission of the Court, as per the statement attached to his affidavit. The said affidavit and the statement were taken on record by the Court as per the order dated 15.6.2018. Under the circumstances, the Reference Court shall also inquire into the matter as to how and at whose orders/instructions, the concerned the respondent - claimants had withdrawn and the concerned banks had permitted to withdraw the amounts which were directed to remain invested in the FDRs till the pendency of these appeals as per the orders passed by this Court while admitting the appeals.
29. In that view of the matter, the impugned awards dated 31.12.2001 and 20.2.2002 passed by Page 43 of 44 C/FA/1004/2002 CAV JUDGMENT the Reference Court are set aside. The matters are remanded to the Reference Court as stated herein above for being decided afresh and in accordance with law. The matters being old, it is expected that the Reference Court shall decide the same as expeditiously as possible. The appeals stand allowed accordingly.
(BELA M. TRIVEDI, J) V.V.P. PODUVAL Page 44 of 44