Karnataka High Court
Assistant Commissioner And Land ... vs Karmin Alias Lucy Pudthedo And Another on 21 July, 1999
Equivalent citations: 1999(6)KARLJ417
Author: Mohamed Anwar
Bench: Mohamed Anwar
JUDGMENT G.C. Bharuka, J.
1. This is a State's appeal through the Assistant Commissioner-cum-Land Acquisition Officer, Puttur, Dakshina Kannada, questioning the correctness of the judgment and award dated 14-10-1993 passed by the Civil Judge, Puttur, under Section 26 of the Land Acquisition Act, 1894 (in short, 'the Act').
2. The acquisition proceedings were started pursuant to the notification dated 28-1-1986 issued under Section 4(1) of the Act. The lands acquired are, 63 cents in Sy. No. 171/11-E, one cent in Sy. No. 174/12-B, 7 cents in Sy. No. 171/7-A, 9 cents in Sy. No. 171/6-A, 9 cents in Sy. No. 171/10-B and 9 cents out of Sy. No. 171/9-A. Out of these lands, the lands comprising in Sy. No. 171/12-B and 6 cents in Sy. No. 171/10-B are Bhagayath lands (Garden lands). The Land Acquisition Officer (in short, 'the LAO'), on the basis of the sale statistics collected by him from the office of the concerned Registrar and treating the same as comparable sales, under his award dated 7-2-1990 determined the compensation at the rate of Rs. 903/per cent in respect of Bhagayath lands and at the rate of Rs. 645/ per cent in respect of other lands.
3. The claimants-respondents being dissatisfied with the said award preferred a reference under Section 18 of the Act. The learned Civil Judge, on the basis of the materials brought on record, determined the market value of the lands at the rate of Rs. 3,000/- per cent. For arriving at the said market value, the Civil Court relied on the sale deed executed by one Abbas in the year 1985 in favour of one Prabhakara Achrya, wherein 17 cents of land had been sold for a sum of Rs. 46,000/. A photostat copy of the said registered sale deed was produced as Ex. P. 2. Admittedly, neither the vendor nor the vendee of the said transaction was examined to prove the genuineness and/or the comparability of the transaction to determine the market value of the lands acquired in the present proceedings.
4. In the present appeal, Sri L. Umakanth, learned Additional Government Advocate, has assailed the impugned judgment and award on one of the grounds that the sale transaction under Ex. P. 2 could not have been made the basis for determining the market value of the acquired lands, since the parties to the said transaction have not been examined to prove the relevance thereof. In support of this contention, he has relied on the judgment of the Supreme Court in the case of P. Ram Reddy and Others v Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad and Others.
5. We have also heard Sri G. Balakrishna Shastry, learned Counsel appearing on behalf of respondent-claimants on the said aspect.
6. In the present case, the award of the LAO dated 7-2-1990 forms part of the record. As per the said award the LAO has based his valuation of the land on certain sale transactions, the details whereof finds place in Schedule II to the award. But, surprisingly, no effort was made by the LAO or the State Government to produce the certified copies of any of the said sale deeds to show that the sales evidenced by those documents are more proximate in time, distance and quality to lands acquired and are more adoptable as comparable sales.
7. In the case of Chimanlal Hargovinddas v Special Land Acquisition Officer, Poona and Another , the Apex Court has enumerated various aspects pertaining to the determination of the market value by the Reference Court. Some of them which are material for the present purpose are as follows.-
(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 the Court unless produced and proved before it. It is not the function of the Court to sit 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 was 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 the land under acquisition has to be determined as on the crucial date of publication of the notification under Section 4 of the Land Acquisition Act (dates of Notifications under Sections 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 Section 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. (Sometimes instances are rigged up in anticipation of acquisition of land.).
8. From the above it is clear that the materials which have been relied upon by the LAO for making the award cannot be utilised by the Court unless the same are produced and proved. Similarly, the claimant has to show that the price offered for his land in the award is inadequate on the basis of oral and documentary evidence adduced in the Court.
9. In the present case as noticed above, the claimant-owner, in order to claim higher compensation has merely produced the photostat copy of a sale deed Ex. P. 2. The first question to be addressed is; whether the said document can at all be utilised by the Court for determining the market value?
10. In the case of P. Ram Reddy, supra, it has been held by the Supreme Court at Para 19, thus "Certified copy of a document registered under the Registration Act, 1908 but for the above provision could have been only secondary evidence which could have been accepted by the Court when primary evidence relating to the original documents were shown to be unavailable. Section 51-A of the LA Act as seen therefrom, is enacted to enable the parties in land acquisition cases, to produce certified copies of documents to get over the difficulty of parties, in that, persons in possession of the original documents would not be ready to put them in Courts, for when once they are put in Court they cannot be sure when they could take their return from Court. However, the mere fact that a certified copy of the document is accepted as evidence of the transaction recorded in such documents does not dispense with the need for a party relying upon the certified copies of such documents produced in Court in examining witnesses in connection with documents to establish their genuineness and the truth of their contents. Therefore, the certified copies of registered documents, though accepted as evidence of transactions recorded in such documents, the Court is not bound to act upon the contents of those documents unless persons connected with such documents give evidence in Court as regards them and such evidence is accepted by the Court as true".
11. The Supreme Court has further held that-
"But when the LAO or the Collector has made his award based on the contents of documents, as found in the registers kept under the Registration Act and produces registration copies of such documents in support of his award in Court, they could be regarded acceptable as evidence by Court given in support of the award unless it is shown by contra-evidence on behalf of the claimants that such documents could not have been relied upon by the Collector or LAO in making the award. It would be so for the reason that when the LAO produces in Court registration (certified) copies of those documents which he had made the basis for determining the market value, that would be only to support his award and not to establish something independent of the award. If that be so, when such documents are produced on behalf of the LAO in Court, they cannot be rejected on the ground that the witnesses associated with those documents cannot be examined by the LAO, inasmuch as even without producing such documents he can rely upon the award made by him to show that he had looked into those documents and he had determined the market value on that basis. Hence, the mere fact that witnesses associated with such certified copies of documents produced as evidence in Court were not examined on behalf of the LAO will not in any way affect the award of the LAO if he has determined the market value of the acquired land having perused those documents as found in the registers kept under the Registration Act or their certified copies before determining the market value of those lands on the basis of such documents".
11(a). The above enunciation of law by the Supreme Court highlights two material aspects regarding mode and manner of proving the sale transactions by duly considering the legislative intendment contained in Section 51-A of the Act. The Supreme Court has held that no doubt the certified copy of a sale deed can be taken into the evidence and its contents can be looked into but still the same cannot be relied upon by the Courts for ascertaining the market value of the lands acquired unless the persons connected with such a document are brought in the witness box for giving evidence regarding the genuineness of the transaction or for treating the transaction to be a comparable one. This very aspect has been more elaborately explained in immediately succeeding case of Kummari Veeraiah and Others v State of Andhra Pradesh . It reads thus (pr. 5).-
"It is true that the certified copies of the sale deeds are admissible in evidence as secondary evidence under Section 51-A of the Act since owners would be reluctant to part with their original sale deeds. But, unless either the vendor or the vendee has been examined as witnesses to testify not only the consideration paid but also their specific knowledge and the circumstances in which the sale deed came to be executed, nearness to the lands, etc., the sale deeds cannot be relied on to determine market value of the acquired lands. The true nature and situation of the respective lands are relevant and germane as comparable sales for determination of the compensation and are required to be brought on record through admissible evidence and tested on the anvil of common experience. Therefore, mere marking the documents, Exs. A-3, A-4, A-8 and A-10 by themselves does not amount to proof of the aforementioned factors".
12. Therefore, for the aforesaid reasons, the impugned judgment and award cannot be sustained and needs to be set aside for giving further opportunity to the claimants for leading the required oral evidence in support of their plea that the transaction evidenced by Ex. P. 2 is in fact a comparable sale and the valuation of their lands should be determined on the basis of the said transaction. But the matter cannot be concluded by only so holding since in our opinion there is yet another important aspect touching upon the very public interest which needs to be taken care of.
13. In the present case, like in many other appeals which we had the occasion to hear, it has been found that the public servants like the Land Acquisition Officers or the Deputy Commissioners have been mostly failing in discharging their mandatory duties of leading appropriate evidence in support of the award made by them which have led to defeating of the public interest. In our opinion, such serious dereliction on their part in a public law domain warrants judicial activism to mandate corrective measures.
14. In a case of acquisition of land for public purposes, the compensation is to be paid out of public revenue and therefore, it has a definite and immediate nexus to public interest. It has been noticed by the Supreme Court in many cases that in litigations to which the Government is a party, the public servants have hardly any personal involvement, and if the cases are decided adverse to the Government, no person is individually affected and it merely tells upon the public interest.
15. In the case of G. Ramegowda v Special Land Acquisition Officer, Bangalore, for seeking of cdndonation of inordinate delays, the plea taken by the State Government was that the delay was caused on account of fraud committed by concerned Government pleaders and more than crore of rupees could have lost to the Government on account of such frauds. The Apex Court on realising the said factual happenings had observed that (pr. 8).-
"In litigation to which Government is a party, there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost by such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is the public interest. The decisions of the Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals".
In the above case, it has further been held.-
"Government, like any other litigant must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to the acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross purpose with it".
16. Again, in the case of State of Bihar and Others v Subhash Singh, it has been noticed by the Supreme Court that "it is not uncommon that delay would be deliberately caused to confer advantages to the opposite litigant; more so when stakes involved are high or persons are well connected/influential or due to obvious considerations".
17. In our opinion, what has been noticed by the Supreme Court for causing delay in filing Government appeals squarely applies to defaults committed by the Government servants or its agents like the Government Pleader/Advocates in appropriately prosecuting the Government causes by adducing or bringing on record the requisite evidence, may be oral or documentary.
18. Taking in view the above changed social scenario evidencing moral devaluation on the part of the Government servants and its agents all around, the duty of the Courts have become more onerous and it is high time that they should be more careful and circumspect in dealing with such public law litigations in order to ensure that because of callous indifference, deliberate inaction or mala fide attitude adopted by the public servants, the public cause is not defeated. If the public servants like the LAO or Deputy Commissioner fails to discharge their duties, then the Courts should take it to be their bounded duty to force such public servants to produce the materials like the documents evidencing the comparable sales, in support of their awards, by issuing the appropriate judicial directions in terms of Section 165 of the Evidence Act or under Rule 1 of Order XIII and Rules 6,14 and 15 of Order XVI of the Code of Civil Procedure.
19. Section 165 of the Evidence Act reads as follows.-
"165. Judge's power to put questions or order production.-
The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:
Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved:
Provided also that this section shall not authorise any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the question were asked or the document was called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149; nor shall he dispense with primary evidence of any document; except in the cases hereinbefore excepted".
20. Rule 1 of Order XIII reads as under.-
"1. (1) The parties or their pleaders shall produce at or before the settlement of issues, all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced.
(2) The Court shall receive the documents so produced: Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs".
21. Rules 6,14 and 15 of Order XVI read as follows.-
"6. Summons to produce documents.--Any person may be summoned to produce a document, without being summoned to give evidence, and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same.
14. Court may of its own accord summon as witnesses strangers to suit.--Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it necessary to examine any person, including a party to the suit, and not called as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be appointed, and may examine him as a witness or require him to produce such document.
15. Duty of persons summoned to give evidence or produce document.--Subject as last aforesaid, whoever is summoned to appear and give summons for that purpose, and whoever is summoned to produce a document shall either attend to produce it, or cause it to be produced, at such time and place".
22. Under Section 165 of the Evidence Act, in order to discover or to obtain proper proof of the relevant facts, the Judges have been inter alia empowered to order the production of any documents. This section is intended to arm the Judge with the most extensive power possible for the purpose of getting at the truth. The effect of this section is that in order to get to the bottom of the matter before it, the Court will be able to look at and enquire into every fact whatever. Similar powers have been vested in the Courts under various provisions of the Civil Procedure Code, as noticed above (see Ratanlal's Law of Evidence, 17th Edition revised by Justice Hidayatullah).
23. In the case of Mohanlal Shamje Soni v Union of India and Another, it has been held by the Supreme Court that.-
". ... it is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or points in issue", (pr. 10) It has been further held that.-
". . . . a Judge in order to discover or obtain proof of relevant facts is empowered under Section 165 of the Evidence Act to exercise all the privileges and powers subject to the proviso to that Section". (pr. 15)
24. In the case of Jamatraj Kewalji Govani v State of Maharashtra, the Apex Court has held the above provision as conferring "Jurisdiction on the Judge to act in aid of justice".
25. We may notice here that there is a misconception in certain judicial quarters that the Indian Judicial system is an 'adversary system' in the traditional English concept. So far as the English system is concerned, Lord Denning, in the case of Jones v National Coal Board , has said that:
"In the system of trial that we evolved in this country, the Judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of the society at large, as happens, we believe, in some foreign countries".
26. Certainly, the above is not true of the Indian Judicial system. A Judge in the Indian system has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that "every trial is a voyage of discovery in which truth is the quest". In order to bring on record the relevant fact, he has got to play an active role; no doubt within the bounds of the statutorily defined procedural law.
27. Our Supreme Court, in the case of Ram Chander v State of Haryana,, has said that.-
". . . there is an unfortunate tendency for a judge presiding over a trial to assume the role of referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure".
28. In the case of Mohanlal Shamji, supra, while envisaging a situation where best available evidence is not brought before the Court for one or the other reason by either of the parties, the Supreme Court has said that.-
"In such a situation a question that arises for consideration is whether the Presiding Officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions - whether discretionary or obligatory - according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done".
29. From conspectus of the law made by the legislature, as also, that declared by the Supreme Court, it is now more than clear that where the Land Acquisition Officer has relied on certain sale transactions for determining the market value of the acquired land, as referred in the award, which is statutorily filed before the Court, and he fa(sic) produce the certified copies thereof, then it should be the duty of the Reference Court to direct him to produce the said documents. In case of his failure to do so, he may be subjected to suitable exemplary costs, apart from initiating other appropriate legal proceedings, which may be germane to such non-compliances.
30. It may be noticed here that under Section 114 of the Indian Evidence Act, the Court can inter alia presume the existence of any fact which it thinks likely to have happened, regard being had to the natural course of events, human conduct, and public and private business, in their relation to the facts of a particular case. In Illustration (e) to the section, the Courts have been empowered to presume that the official acts have been regularly performed. Under Illustration (g), there is further presumption that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. The question is where, in a Land Acquisition Proceeding, the officials and the servants of the Government fail to discharge their duties in the manner they are required of, that is by producing the certified copies of the documents evidencing comparable sales and thereby fails the presumption under Illustration (e), can the Court still draw an adverse inference against the State under Illustration (g). The answer has to be certainly in "no". The presumptions under Section 114 had been carved out by the legislature by basing on common course of natural events which a prudent litigant will follow to safeguard its interests. But, where State as a litigant, who has to necessarily act only through its servants and agents who are found to have acted in a manner detrimental to the State's interest by not producing the relevant evidence in the Court, then certainly the State cannot be made to suffer by relying on the principle of adverse inference. Application of any such presumption will only defeat the public purpose and the Court has to refrain from doing so. It has to be always kept in mind that under our Constitutional scheme, the judiciary has to always remain alive to ensure that for inaction or fraud committed by the executive, the public interest does not suffer. Every new behavioural or moral challenge has to be counteracted with appropriate moulding of equities and legal principles or else the law has to loose its edge.
31. Accordingly, keeping in view the above aspects, it is directed that if despite judicial orders/directions, the LAOs fail to produce the required documents then, apart from initiating appropriate punitive measures, the Reference Court has to summon the Deputy Commissioner or the Registrar/Sub-Registrar to produce the relevant documents.
32. It has been noticed here that the Supreme Court in the case of P. Rama Reddy, supra, have clearly held that for proving the documents pertaining to such sales, the LAOs are not required to examine the parties to the transaction and the Courts will be competent to rely on the documents on their mere production, as evidence in record.
33. It is high time that the Government should take note of the above aspect and issue suitable directions to its LAOs and Deputy Commissioners regarding leading of evidence. In case of violations on the part of such officers, it is expected that the Government will initiate necessary actions and proceed with the disciplinary proceedings.
34. We may also observe that once a reference application made under Section 18 of the Act is found to be valid and entertainable, then, under Section 19 thereof the Deputy Commissioner, while making a reference, has to send a statement to the Court inter alia stating the grounds on which the amount of compensation was determined by the LAO. Therefore, it will be more advisable on the part of the Government to make appropriate amendment in the State Rules making it mandatory for the Deputy Commissioners themselves to enclose the certified copies of the sale documents which were treated to be comparable ones by the LAO. If it is so done, then it will give a fair opportunity to the claimants as well to lead appropriate evidence in rebuttal of the stand taken by the LAO.
35. In the result:
(i) the Reference Court cannot rely on any document produced by the claimants like Ex. P. 2 unless the parties to the transaction like vendor or vendee are examined as witnesses to show that the transaction was genuinely entered into and it can be taken as a comparable sale;
(ii) it is the duty of the LAO to produce the certified copies of the sale documents as referred to in their awards and has formed the basis for determination of market value at their end;
(iii) if the LAOs fail in their duty to produce the said documents, then it will be the duty of the Reference Court to direct the LAOs to produce the relevant documents;
(iv) in case of failure of the LAOs to abide by the above direction, the Court has to take necessary punitive actions as discussed above and also to direct the Deputy Commissioner/Registrar/Sub-Registrar concerned to produce the documents;
(v) it will be advisable on the part of the Government to suitably amend the State Rules to provide that the documents relied upon by the LAO should be filed before the Court alongwith the statement to be filed by the Deputy Commissioner under Section 19 of the Act.
36. With the said observations and directions, the impugned judgment and award is set aside and the matter is remitted back to the Civil Judge, Puttur, Dakshina Kannada, for fresh decision in accordance with law. No order as to costs.
37. Let a copy of this judgment be made available to Government Advocate for being circulated to all its LAOs and Deputy Commissioners, through Chief Secretary to the State.
38. Copies of this judgment should be sent to all the judicial officers in the State with direction that they should read the same meticulously.