Gujarat High Court
Oil & Natural Gas Corp. Ltd vs Zala Pruthvisingh Guamansingh ... on 15 October, 2014
Bench: Jayant Patel, Sonia Gokani
C/FA/1642/2007 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL No. 1642 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE Mr. JUSTICE JAYANT PATEL
and
HONOURABLE Ms. JUSTICE SONIA GOKANI
================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================ OIL & NATURAL GAS CORP. LTD.....Appellant(s) Versus ZALA PRUTHVISINGH GUAMANSINGH DECD.THROUGH THE LRS....Defendant(s) ================================================================ Appearance:
Mr. RR MARSHAL for MARSHALL & ASSOCIATES, ADVOCATES for the Appellant Mr. TEJAS P SATTA, ADVOCATE for the Defendant(s) No. 1.1 1.4 ================================================================ CORAM: HONOURABLE Mr. JUSTICE JAYANT PATEL and HONOURABLE Ms. JUSTICE SONIA GOKANI 15th October 2014 CAV JUDGMENT (PER : HONOURABLE Ms. JUSTICE SONIA GOKANI) This Appeal has been preferred under section 96 of the Code of Civil Page 1 of 26 C/FA/1642/2007 CAV JUDGMENT Procedure, 1908 read with the provisions of the Land Acquisition Act, being aggrieved by the judgment and award passed by the learned Senior Civil Judge, Mahesana dated 20th February 2007 in Special Civil Suit No. 278 of 2002.
Factual Background :
For the sake of convenience, the appellantOil & Natural Gas Corporation shall be referred to as "the defendant" and the respondentZala Pruthvisingh Gumansingh, as the "plaintiff". The suit, being Special Civil Suit No. 278 of 2002, is in respect of damages claimed from the defendant in the following factual background.
The plaintiff is an agriculturist. He is the owner and occupier of the agricultural land bearing Survey Nos. 18/1, 10, 39, 274, 24, 25, 12, 9 & 37 of village Saduthala of Taluka Becharaji, DistrictMehsana. It is the case of the plaintiff that in the adjoining land of the plaintiff, an Oil Well VLAC 20 has been situated from where the defendant draws crude oil. On a fateful day of 23rd December 2001, from the said well, oil, gas and chemically treated water had flown out, which resulted into accumulation of oil, liquidated waste in the surrounding area of the said well. The said crude oil and liquidated waste entered into the adjoining fields and continued to be there for months together, resulting into serious damage to the standing crops as also to the fertility of the land and damaging irreparably, the agricultural land and its produce. It is also Page 2 of 26 C/FA/1642/2007 CAV JUDGMENT the case of the plaintiff that not only the standing crop got damaged but the yield of the agricultural produce had reduced to a considerable extent, which necessitated incurrence of heavy expenditure to restore it to its original position. Under three different heads damages have been sought, these are - [a] damage to the yield; [b] for restoration of the land and [c] damage to the standing crops - totalling Rs. 24,25,900/=. The compensation paid by the ONGC is to the tune of Rs. 99,000/= and that has been deducted, and accordingly, the damage claimed by the plaintiff is of Rs. 23,26,900/=.
The plaintiff had made a request to the responsible officials of the defendantCorporation for payment of the entire amount of damages. After the survey and measurement of damage was carried out by the Circle Officer, Bechraji, the District Collector, Mehsana also was approached with a request to direct the officials of the ONGC to pay the said amount of compensation. However, the amount paid was very meager, and therefore, suit has been preferred for seeking reliefs of damages, as mentioned hereinabove.
The defendant Corporation responded to the summons issued by the Court and denied all the averments set out in the plaint.
It was contended by the defendant that the claim of the plaintiff is disproportionately excessive and the calculation of damage is completely unpalatable. Overflowing of the well since was not within the human control Page 3 of 26 C/FA/1642/2007 CAV JUDGMENT and due to certain internal plates of the earth it had occurred, it was contended that the same should be termed as an act of God and that no negligence of any human agency connected with the defendant having come to fore, no compensation towards damages need to be given to the plaintiff. Defendant also contended that neither the fertility of the land nor subsequent agricultural produce in any manner got affected and the amount of compensation paid to the plaintiff was as per the assessment of the damage carried out scientifically and accordingly, it had denied the claim made by the plaintiff in entirety.
The Court, after considering the rival pleadings, framed the issues which are all inter connected. All the issues have been adjudicated in favour of the plaintiff and those raised against the plaintiff have been negated. The Court concluded that the act of God pleaded by the defendant was unacceptable. It was purely a case of negligence on the part of the defendantCorporation who chose not to contest by way of giving oral deposition, despite repeated opportunities and accordingly held the defendant responsible for damages that had been caused on account of wrongful act committed by the defendant. Thus, the total amount of damages to the tune of Rs. 23,26,900/= has been awarded to the plaintiff with interest @ 9% per annum from the date of suit till the decreetal amount is realized by the plaintiff. In other words, the amount of compensation assessed by the Court for the damage caused to the agricultural fields of the Page 4 of 26 C/FA/1642/2007 CAV JUDGMENT plaintiffs is the entire amount claimed by plaintiff with 9% per annum alongwith payment of cost.
This gave raise to the present Appeal where the defendant, on the grounds pleaded before this Court, has challenged the decree and judgment passed by the trial Court.
Submissions :
Learned senior advocate Shri R.R Marshall appearing for ONGC has urged that at the time of overflowing of the oil well, the assessee had carried out scientific assessment and accordingly paid a sum of Rs. 99,000/= for the spill and there was no need to make any enhancement by the trial Court. He further urged that the plaintiff has no interest in the damage of the property, as he is neither the owner nor occupier of the property. He is only authorized to receive cheque of compensation from ONGC but that would not give him locus standi to prefer a suit for damages. He further urged that in absence of any evidence, much less cogent and substantiating evidence, huge amount of damage could not have been awarded by the Court concerned. Further, the restoration expenses appear to be totally fabricated. Had there been any material, the same could have been reflected in the plaint itself. According to the learned counsel, non examination of any witnesses by the appellant defendant would not shift the burden on the defendant to disapprove Page 5 of 26 C/FA/1642/2007 CAV JUDGMENT something which has, in the first place, not been proved. When no damages have been remotely caused to the fields, there does not arise any question of granting damages to the plaintiff. He also has alleged that the matter was transferred to a Judge who rendered judgment without informing the learned counsel for the appellant, after the evidence was over. He urged that in absence of any discussion on the damages, awarding of the total amount claimed by the plaintiff itself makes the award bad.
Per contra, learned advocate Shri Tejas P. Satta appearing for the appellant fervently contended that no interference of this Court is warranted in as much as the defendant has chosen not to examine any one and the same being a public body, it owes more responsibility towards public at large. He further contended that the amount of Rs. 99,000/= paid by the ONGC to the plaintiff is nothing as compared to the scale at which damage has been caused by the act of overflowing of oil in the fields of the plaintiff. He also urged that no valid ground is made out for remand of the matter or for allowing fresh evidence, when enormous opportunities were afforded to the respondent, it chose not to avail the same. It is further urged that on the basis of voluminous evidence adduced by the plaintiff, the Court has concluded to grant the total amount of damages claimed by the plaintiff. He further contended that the Court has given cogent and sustainable reasons to hold that the plaintiff could Page 6 of 26 C/FA/1642/2007 CAV JUDGMENT establish from the material on the record the genuineness and correctness of his claim of damages.
Findings :
Upon thus hearing both the sides and on thorough examination of entire material on record, coupled with the judgment of the trial Court, this appeal is being decided. On the basis of pleadings of the parties and the evidence that had been adduced before the trial Court, at the outset, it is to be noted that the factum of flowing of the Well of crude oil/gas/liquidated waste is hardly disputed. The ONGC Well No. VLAC20 is situated in the adjoining field of that of the plaintiff. On 23rd December 2001, this Well had overflown resulting into oil, gas and liquidated waste getting accumulated in the surrounding fields.
A panchnama of the field was carried out in presence of the Circle Officer and the owner of the land. It also notes the damages to the standing crops; coupled with the details of damage to the total area of land and that of the agriculture produce. The Circle Officer and others, which include the plaintiff, have signed such panchnama and the Mamlatdar, Becharaji opined to award damages in respect of Survey No. 12 to the tune of Rs. 17,600/=.
Application appears to have been made to the General Manager, ONGC seeking compensation of damages done on account of such flowing of the well. Page 7 of 26 C/FA/1642/2007 CAV JUDGMENT On 5th August 2002, the Officers of the respondent had paid a sum of Rs. 99,000/= to the plaintiff. However, on having found the said amount to be too meager visavis the damage caused, a legal notice was served upon ONGC by the plaintiff on 9th September 2002, and thereafter, when no heed was paid to such a notice, plaintiff filed a suit for damages against the defendantONGC.
In the Civil suit preferred for damages, all the issues framed on the strength of rival contentions are held in favour of the plaintiff on conclusion of evidence. Plaintiff's side was substantiated by oral as well as documentary evidences. Moreover, the defendantONGC chose not to examine any one on its behalf although sufficient amount of opportunity was made available to it.
At this stage, it is necessary to mention that in the interregnum, an in house committee of the ONGC had been formed and a report had been prepared by the Committee on the assessment of damages due to flowing of oil and chemically treated water from out of the well. But, none from the ONGC entered into the witness box to depose. We took notice that the Court had availed many opportunities to the Corporation, however, it shown its inability to produce any oral evidence, on account of nonavailability of the officer concerned for the purpose of deposition. In other words, despite service of summons to the witnesses, those who were in the employment of ONGC at the time of proceedings of the trial also chose not to depose. In such circumstances, Page 8 of 26 C/FA/1642/2007 CAV JUDGMENT the Court had based its entire decision on the deposition of the plaintiff, who also examined the witnesses to substantiate his version of proof of the damage.
It is necessary, at this stage, to make a mention of the fact that any act or omission on the part of the defendant Corporation which extracts the crude oil from the soil/land carrying out extremely technical and expert work, if fails to take due care and maintains the requisite standards or also omits to take precautionary measures to prevent injury or damage and thereby results into unwarranted incidents causing damage to property of others, this very act or omission constitutes the act of negligence. The defendant had all the responsibility of maintaining properly and reasonably a well of crude oil from where the oil was being extracted and such liability is very strict liability imposed by the law. It was not only the morale duty but a strict legal requirement for the defendant to take proper care and caution in respect of the well, and any damage to the third person on account of blowing out of the well would give rise to the actionable claim of damages.
Law on Strict liabilities under the Tort :
It would not be out of place to refer to some of the caselaws on the said issue, at this stage.
[a] Radhyeshyam Shyam [Dead] thro' Lrs. & Ors. v. State of Uttar Pradesh & Ors, reported in [2011] 5 SCC 553;
[b] Deputy Collector & LAQ Officer & Anr. v. Samju Naran & Ors., First Page 9 of 26 C/FA/1642/2007 CAV JUDGMENT Appeal No. 5307/2001 to 5309/2001 :: Decided on 02/08/2011 [Coram : Jayant Patel & R.M Chhaya, JJ.] [c] Special Land Acquisition Officer v. Kodarbhai Jenabhai & Ors., reported in 2002 (2) GLH 435;
[d] Special Land Acquisition Officer & Anr. v. Zala Laxmansinh Adesinh, First Appeal No. 276/2009 to 297/2009 :: Decided on 29/08/2011 [Coram : Jayant Patel & R.M Chhaya, JJ.} "Negligence" is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or something which a prudent and reasonable man would not do. {GovernorGeneral in Council v. Mt. Saliman, (1948) ILR 27 Patna 207}. Winfield defines, "negligence" as a tort, is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff". Apex Court in case of Poonam Verma v. Ashwin Patel, reported in AIR 1996 SC 2111 has held that the definition involves three constituents of negligence : (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) Breach of the said duty; and (3) consequential damage. In Donoghe v. Stevenson (1932) AC 562, Lord Machmillan distinguished the carelessness and negligence by stating that, "the law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness only where there is a Page 10 of 26 C/FA/1642/2007 CAV JUDGMENT duty to take care and where failure in that duty has caused damage. In such circumstances carelessness assumes the legal quality of negligence and entails the consequences in law of negligence. The cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care, and that the party complaining should be able to prove that he has suffered damages in consequence of a breach of that duty." Thus, in strict legal analysis, negligence would mean more than carelessness conduct, be it omission or commission.
It would be apt to note at this stage that there are certain hazardous activities which constitute constant danger to person and property of others. The law may chose to prohibit such activities altogether; or it may allow them to be carried on for the sake of their social utility, but, of course, only in accordance with statutory provisions by laying down safety measures and providing certain sanctions for non compliance. They can be allowed to be continued only on condition that they pay their way regardless of any fault and such is the last call of the doctrine of strict liability. The undertakers of these activities have to compensate for damages caused, irrespective of any carelessness on their part. The basis of liability is the foreseeable risk inherent in the very nature of the activities. In this aspect, the principle of strict liability resembles negligence which is also based on foreseeable harm. But, the difference lies in that the concept of negligence comprehends that the Page 11 of 26 C/FA/1642/2007 CAV JUDGMENT foreseeable harm could be avoided by taking reasonable precautions and so if the defendant did all that which could be done for avoiding the harm, he cannot be held liable except possibly in those cases where he should have closed down the undertaking. Such a consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions. The rationale behind strict liability is that the activities coming within its fold are those entailing extraordinary risk to others, either in the seriousness or the frequency of the harm threatened [Law of Torts - By Ratanlal & Dhirajal :: 25th Edition 2006]. Fleming, Torts in its 6th Edition (on page302) commenting on this, states that, "permission to conduct such an activity is in effect made conditional on its absorbing the cost of the accidents it causes, as an appropriate item of its overhead". Similar such observations are also made by the Apex Court in case of M.C Mehta v. Union of India {1987} 1 SCC 395.
The origin of this doctrine of strict liability is in the case of Rylands . Fletcher [1868] LR 3 HL 330 where the defendants, who had a mill near Ainsworth in Lancashire wanted to improve its watersupply. They constructed a reservoir by employing reputed engineers to do it. When the reservoir was filled, water flowed down the plaintiff's neighbouring coal mine causing damage. The engineers were independent contractors. There was some Page 12 of 26 C/FA/1642/2007 CAV JUDGMENT negligence on their part in not properly sealing disused mine shafts which they had come across during the construction of the reservoir and it was through those shafts that the water flooded the plaintiff's mine. The defendants were in no way negligent having employed competent engineers to do the job and as the engineers were independent contractors, the defendants could not be made vicariously liable for their negligence. The Court of Exchequer dismissed the claim as showing no cause of action. But, the Court of Exchequer Chamber allowed the appeal. The decision of that Court which laid down a new basis of liability was approved by the House of Lords holding that, "the rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape." The House of Lords, while approving the judgment, laid down that the rule applied when there was non natural user of land. In other words, there must be some special use bringing with it increased danger to others, and must not merely be the ordinary use of the land or such a use is proper for the general benefit of the community. This principle of Rylands v. Fletchers is followed in several Indian cases. There are certain exceptions carved out and the liability is not absolute, as recognized in Rylands v. Fletchers [Supra]. The defendant can excuse himself by saying that the escape was not Page 13 of 26 C/FA/1642/2007 CAV JUDGMENT owing to the defendant's fault and the escape was consequence of act of God or it was a wrongful act/ intervention of a third party.
It needs to be noted that the more stringent rule of Rylands v. Fletcher was laid down by the Apex Court in case of M.C Mehta v. Union of India [Supra]. It was a case where harm was caused due to escape of Oleum gas from one of the units of Shriram Foods & Fertilizer Industries. The Court held that the rule of Rylands v. Fletcher which was evolved in the 19th Century did not fully meet with the needs of a modern industrial society with highly developed scientific knowledge and technology where hazardous or inherently dangerous industries were necessary to be carried out as part of the development programme and that it was necessary to lay down a new rule not yet recognized by English law, to adequately deal with the problems arising in a highly industrialized economy. And thus, the Apex Court laid down the rule as follows :
"Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate visavis the tortuous principle of strict liability under the rule of Rylands v. Page 14 of 26 C/FA/1642/2007 CAV JUDGMENT Fletcher." A doubt was expressed in a subsequent case of Charan Lal Sahu v. Union of India, AIR 1990 SC 1480 whether the view expressed was obiter and was a departure from the law applied in western countries and was not accepted in subsequent decision of the Apex Court rendered in case of Indian Council of Environ Legal Action v. Union of India, AIR 1996 SCV 1446 holding that the rule laid down in M.C Mehta's case was not obiter and was appropriate and suited to the conditions prevailing in our country. This was a case, where hazardous chemical industries had released highly toxic sludge and toxic untreated waste water which had precolated deep into the soil rendering the soil unfit for cultivation and water unfit for irrigation, human or animal consumption resulting in untold misery to the villagers of surrounding areas.
In light of the discussion held hereinabove, we shall have to consider whether the case of the plaintiff would be covered under the principles discussed hereinabove and whether the defendant can excuse itself by saying that its case come under any of the exceptions.
As can be noted from the material on the record that the digging of the well was for the purpose of extracting the crude oil and such activity was possible only with excavation of the earth required to be performed by highly technical and scientific activities. This, of course, cannot be said to be an ordinary use of the land. This surely is not the natural use of the land. The Page 15 of 26 C/FA/1642/2007 CAV JUDGMENT defendant has made such use of the land, whereby, it collected and kept something which was likely to do mischief, if it escapes, and therefore, such act was to its peril. Even if it is carried out for the sake of public utility, in accordance with the statutory provisions and safety measures, they can be permitted to so do it only on condition that they need to pay the damages, in the event of any harm caused to neighborhood. Defense is raised rather of this being the act of God and also of the defendant having taken all precautionary measures to prevent such harm. However, this surely cannot be termed as vis major for there was no event either of storm, extraordinary rains or earthquake, or any elementary force of nature unconnected with any human agency or any other cause, which would come under the category of acts of God, nor was this a case where the escape was owing to the plaintiff's default, nor was the third party involved in such act, and therefore, the principles of strict liability; as discussed hereinabove, would apply to the case. The defendant had kept on his land an oil well, and therefore, when it had escaped, the defendant would surely be answerable for all the damages caused as a natural consequence for such escape.
Quantification of Damages :
The question next, therefore, would be the quantification of such damages. The damages awardable where the rule of Rylands v. Fletcher applies Page 16 of 26 C/FA/1642/2007 CAV JUDGMENT will be ordinary or compassionate damages. However, in M.C Mehta's case [Supra], the Supreme Court has held that the Court can allow exemplary damages as well.
In the matter on hand, the plaintiff, in examinationinchief has given details as to how the said act of defendant had caused damage - not only to his standing crops, but also, to the fertility of the soil and that continued to affect his future yields. The amount of expenditure for restoration of the soil to its original position also has been explained by way of oral deposition and the same has been further substantiated by the documentary evidence in the form of bills furnished by the parties from whom he had bought the soil/land as also the manure. The vendors of all these items also had deposed in favour of the plaintiff. The trial Court, on having noted that the plaintiff claims compensation under various heads to the extent of Rs. 24,25,900/= deducted the sum of Rs. 99,000/= paid by the defendantCorporation, and thereby, restricted the claim to Rs. 23,26,900/= and awarded the entire amount by holding that the claim of the plaintiff had remained unchallenged, as nothing contrary has been elicited in the cross examination of the plaintiff and the witnesses and that the defendant had chosen not to rebut such evidence, either by way of oral evidence or documentary evidences. On having found that the plaintiff proved the damages and the evidence having gone unchallenged, the Page 17 of 26 C/FA/1642/2007 CAV JUDGMENT trial Court awarded entire sum of compensation.
We are of the opinion that even after proving that the act of defendant had led to the causing of damages, his entitlement for damages cannot be disputed, nevertheless, the onus continues to be on the plaintiff to prove the quantification of such damages. It is for the Court to decide on the basis of the evidence which had been laid by the plaintiff; even if, the same is not rebutted as to whether the entire claim of plaintiff gets proved by the cogent and unshakable evidence. Merely because the defendant chose not to contest or rebut the positive evidence established by the plaintiff, that would not ipso facto allow the entire claim of the plaintiff without any due scrutiny.
In wake of the discussion hereinabove, the question that is being addressed is the quantum of the damage to the soil/land of the plaintiff, so also to the standing crops.
Out of the total sum of Rs. 24,25,900/=, the plaintiff has rightly deducted a sum of Rs. 99,000/= paid by the defendant Corporation, and therefore, for the remaining sum of Rs. 23,26,900/= under various different heads, the evidence has been adduced. The sum total of the documentary and oral evidence includes not only damage done to the soil/land and to the crop but to the extent of damage as may incur to the future crops as a result of such damages and such evidence shall have to be closely examined. Page 18 of 26 C/FA/1642/2007 CAV JUDGMENT
Before we undertake the said exercise, at the very outset, we reiterate out disapproval of the grant of entire claim on the part of the trial Court by making sweeping observation that the defendant failed to rebut the evidence adduced by the plaintiff. It is true that the calculation of the damages assessed by the competent authority of the defendant failed to produce the rationale behind grant of compensation to the tune of Rs. 99,000/= only under several heads like damage to the standing crops, use of fertilizers, restoration of the land, etc. It is also a matter of record that the defendant failed to examine any expert or any official, particularly in respect of the report, produced by the defendant to substantiate its stand and yet, it is to be held that the grant of entire claim by way of compensation without requisite scrutiny is not found in consonance with the settled legal norms, and therefore, it deserves no approval.
It will be worthwhile to give one example at this stage as to why the facts on record lead us to say so. One of the witnesses of the plaintiff - Lalji G. Desai in his deposition at Exh. 76 had been specific about his having received a sum of Rs. 2,64,000/= for changing the layer of soil and in all 880 tractors full of such soil had cost the plaintiff the said amount. Whereas, in fact, in his cross examination, he admitted at Exh. 78 the bill that he had issued in favour of the plaintiff only speaks of Rs. 64,000/=. According to him, he omitted inadvertently to write the sum of Rs. 2,00,000/= in the said receipt and he got Page 19 of 26 C/FA/1642/2007 CAV JUDGMENT sum of Rs. 26,000/= for such work, however, his books of account are not brought on the record, nor is he an incometax payer. This sounds quite unpalatable that a person who has spent a sum of Rs. 2,64,000/= would take the receipt of Rs. 64,000/= [after having paid a sum of Rs. 2,64,000/=]. It is to be noted that in the cross examination only, such aspect has come to the fore. We choose not to dilate every piece of evidence and terminate this discussion at this stage which was initiated only to indicate that acceptance of the entire claim of the plaintiff in these circumstances would be not only contrary to the settled legal position, but would also be contrary to the principle of appreciation of evidence which has come on the record.
We are conscious at the same time of the decision of the Apex Court in case of Radhyeshyam [Dead] through L.Rs & Ors. [Supra] was dealing with the case where Notification issued under section 4 (1) of the Land Acquisition Act wherein the Government of Uttar Pradesh declared that the land mentioned thereunder to be needed for public purpose ie., for planned industrial development in the district. Inquiry under section 5 (a) was dispensed with invoking the provision of Section 17. It was held that in absence of relevant pleadings or material, there was no need even to require the respondent to bring anything on the record, wherein, the Apex Court laid down certain principles of analyzing the relevant provisions and interpretation by holding Page 20 of 26 C/FA/1642/2007 CAV JUDGMENT that the Court should not literally apply the abstract rules of burden of proof enshrined in the Evidence Act, as it would be too much to expect from the rustic villagers, who are not conversant with the intricacies of law and functioning of the judicial system in the country to first obtain relevant information and records from the state authorities concerned and then present skilfully, drafted petition for enforcement of their legal and/or constitutional rights. Moreover, the relevant records are always in the exclusive possession and domain of the authorities of the State and/or agencies. Therefore, an assertion that there was no urgency in the acquisition of land; that the authorities concerned did not apply their mind to the relevant facts and records and arbitrarily invoked the urgency provisions. While granting the paltry amount of damage by the Corporation, what aspects weighed with them have not been share with the otherside. Neither before the trial Court nor thereafter any rationale is established by the defendants.
In case of Special Land Acquisition Officer v. Kodarbhai Jenabhai & Ors. {Supra}, the market price is to be determined on the basis of crop valuation. It is only in absence of evidence to the contrary that 50% of the gross income should be deducted as cost of cultivation to arrive at net profit and when the evidence is available, the Court is bound to calculate the cost of cultivation as per such evidence. It further lays down that the State is expected to establish by Page 21 of 26 C/FA/1642/2007 CAV JUDGMENT leading evidence, the inferiority of the lands of adjoining villages to deny the claim of the claimants on the basis of such comparability.
Therefore, we have chosen not to remand this matter back to the trial Court, and instead, on the basis of details available on the record, and otherwise also, as per the settled legal principles, have chosen to work out the compensation.
Coming to the evidence of the plaintiff, in the instant case, he has sought for damages to the crops to the tune of Rs. 16,52,340/=, and for re furbishing of the land Rs. 3,32,000/= and for damages to the Ravi and Khariff crops of Rs. 4,41,560/. The total amount of damages asked for is Rs. 24,25,900/=.
Considering firstly damage to the land and the amount of Rs. 3,32,000/= requested for, in the cross examination of the witnessLalji Budharbhai Desai, he has taken commission of Rs. 26,000/=, and the remaining amount of Rs. 2,64,000/=, according to him, is paid over to the person owning the tractor. He has not been paying incometax. However, he insisted that the sum of Rs. 2,64,000/= paid by the plaintiff has been entered in his books of account. As mentioned hereinabove, the bills refer to only Rs. 64,000/=. This work was done by this witness, however, he has taken the amount of commission. The concerned bill also does not speak about payment of Rs. 2,64,000/=. He has Page 22 of 26 C/FA/1642/2007 CAV JUDGMENT tried to explain of having paid that amount to the person from whom he brought organic manure as well as to the owner of the tractor through whom the upper layer of the soil/land has been completely overhauled. This aspect would lead the Court to hold that the sum of Rs. 64,000/= possibly would also include the amount of Rs. 26,000/= given to this person by way of commission, and therefore, the bill of Rs. 64,000/= shall have to be construed for change of upper layer of the fields.
With regard to damage to ravi and khariff crops to the tune of Rs. 4,41,560/=, no concrete evidence comes forth to quantify the said amount. It is not disputed that with the magnitude of damage, it was simply not possible to take ravi and khariff crops. Because of less fertility of the land, damage to the winter crop is stated to have been to an extent of Rs. 4,41,560/=. Undoubtedly, overflowing of the well had damaged the fields and thereby the fertility is automatically affected. However, with no concrete proof in this regard for grant of this amount, the same is being limited from the total area of the land, coupled with the crops which are jointly being taken from such land and the overall facts and circumstances, to the tune of Rs. 2,00,000/=.
According to the plaintiff, the total crop of Jeera could have been 6010 kgs., however, only yield derived was 15 kgs. and thus, calculating the loss suffered at the prevalent market price of the said commodity ie., Rs. 90/= per Page 23 of 26 C/FA/1642/2007 CAV JUDGMENT kg., this had caused damage to the tune of Rs. 5,40,900/=.
The plaintiff in his cross examination has agreed that nearly 30% of the total amount would be spent for getting the said price. There is nothing to indicate that full capacity of land was utilized for getting yield of 6010 kgs. of the Jeera crop, and yet with specific produce/crop of jeera being grown in the said land, this figure is required to be rounded off to Rs. 3,00,000/=.
With regard to Arenda crop, the total yield expected was of 1760 kilograms and the damage on this count works out to be to the tune of Rs. 18,480/=. Such figure is rounded off to Rs. 18,000/=.
For the total area, the grass ie., Razko damage to the seeds is calculated at Rs. 2,11,200/=. Considering the rate of Rs. 60/= per kilogram of the seeds and the total quantity at 160 kilograms, it works out to be Rs. 3,250/=. In survey no. 24 & 25, around 22 ARE is being titled for growing the grass ie., Razko and also for getting the seeds of this grass. The total yield is shown at 20,000/= kgs. in one ARE and in all 22 AREA, therefore, 4,40,000/= kgs of razko grass is sown. Thus, considering Rs. 2/= per kilogram, the total loss suffered on account of razko grass would work out at Rs. 8,88,000/= and whereas, to the total production of the seeds of 3520 kgs. and damage there is of Rs. 2,11,200/=. For the damage to the total quantity of the seeds, such amount is restricted to Rs. 1,00,000/=. However, for the damage to the 20,000 kgs of razko and calculation Page 24 of 26 C/FA/1642/2007 CAV JUDGMENT of Rs. 2 per kg, we are conscious that razko sales at a higher price than ordinary grass but for 22 ARE of land produce this huge quantity were 10 cuts, even if are feasible, that such thin evidence to substantiate this aspect, such amount is being quantified to Rs. 2,00,000/=.
With much fervency although the ONGC had argued that the amount of Rs. 99,000/= given against the entire damage is to be construed as sufficient for the purpose of the entire claim, we surely cannot agree to such a proposition where the strict liability imposed upon the ONGC by the law to safeguard the contents of the well and when it has failed to so do it, the plaintiff had to undergo immense hardship for fault of the appellant herein [original defendant] who also after this event and long drawn legal proceedings, chose not to examine any expert or any officer in the process. Therefore, without accepting the say of the plaintiff on the face value, some detailed working and the compensation would be desirable.
Produce Yield per Prevalent Total Loss Claimed Quantification
RA Market Yield Rs. of loss
Rate assessed
Jeera 15 Kgs Rs. 90/= 6010 Rs. Rs.
per Kg. kgs. 5,40,000/= 3,00,000/=
Arenda 16 kgs Rs. 10.50 1760 Rs. 18,480/= Rs.
per Kg. 18,000/=
Santhi 16 kgs Re. 1 per 1760 Rs. 1,760/=
Arenda- kg. kg.
waste
Razka 2000 Rs.2 per 4,40,00 Rs. Rs.
Page 25 of 26
C/FA/1642/2007 CAV JUDGMENT
{in 22 Kg/Cut Kg. 0 8,80,000/= 2,00,000/=
ARE} Total Cuts- Kgs.
10
Seeds 160 kgs. Rs. 60/= 3500 Rs. Rs.
of per Kg. kgs. 2,11,200/= 1,00,000/=
Razka
Failure to take Ravi & Khariff Rs. Rs. Rs.
Crops [on 24 ARE] 20,000 4,41,560/= 2,00,000/=
per RA
Earth Layer 880 rounds x Rs. Rs. Rs.
surfacing 300/= per trip 2,64,000/= 64,000/=
Manure 110 Tractors x Rs. Rs. 66,000/= Rs.
600/= per Tractor 66,000/=
Fertilizer Rs. 2,000/=
Less : Amount of Rs. 99,000/= paid by Rs. Rs.
way of compensation by the 24,25,900/= 9,48,000/=
Corporation to the appellant. - - Rs.
99,000/=
Rs.
99,000/=
23,26,900/= Rs.
8,49,000/=
In light of the discussion hereinabove, the amount of compensation is reduced to Rs. 8,49,000/=, payable with interest at the rate of 9% per annum, to be paid by the Corporation to the appellant from the date of filing of the suit till the date of payment.
Appeal stands partly allowed.
FURTHER ORDER At the request of learned counsel for the respondents, it is directed that the compensation as held by us, if is not paid, shall be paid within a period of three months from the date of receipt of the order of this Court.
Office to send back the records to the trial Court forthwith.
{Jayant Patel, J.} {Ms. Sonia Gokani, J.} Page 26 of 26