STATE OF GUJARAT v. MAKA MERABHAI RABARI — 1999 DIGILAW 58 (GUJ)

J. M. PANCHAL, J. ( 1 ) THESE two appeals, which are instituted under section 54 of the Land Acquisition Act, 1894 read with section 96 of the Code of Civil Procedure, 1908, are directed against common judgment and award dated October 7, 1993 rendered by the learned Assistant Judge, Porbandar,in Land Acqisition Reference Cases No. 65/88 and 66/88. Both the above-referred to references arose out of the common award made by the Land Acquisition Officer on 16/09/1986. The lands in question were placed under acquisition pursuant to publication of notification on 5/05/1983, which was issued under section 4 (1) of the Land Acquisition Act, 1894. As common questions of fact and law are involved in these appeals, we propose to dispose of them by this common judgment. ( 2 ) THE State Government had received a proposal to acquire agricultural lands of village Khageshri which belonged to the respondents for public purpose of Kalindi Irrigation Scheme. On scrutiny of the said proposal, the State Government was satisfied that the lands belonging to the respondents were needed for the said public purpose. Accordingly, notification under section 4 (1) of the Land Acquisition Act, 1894 ("the Act" for short) was issued, which was published in the Official Gazette on 5/05/1983. The objections raised by the respondents against the proposed acquisition were considered by the Land Acquisition Officer and after considering the same, he had forwarded a report as contemplated by section 5a (2) of the Act. On consideration of the said report, State Government was satisfied that the lands of the respondents which were specified in the notification issued under section 4 (1) of the Act were needed for public purpose of Kalindi Irrigation Scheme. Accordingly, declaration under section 6 of the Act was made, which was published in Government Gazette on July 29, 1984. Thereafter the respondents were served with notices under section 9 of the Act for determination of compensation. Having regard to the materials placed before him, the Land Acquisition Officer by his award dated 16/09/1986 offered compensation to the respondents at the rate of Rs. 70. 00 per Are. The respondents were of the opinion that the offer of compensation made by the Land Acquisition Officer was inadequate. Therefore, they made applications in writing requiring the Land Acquisition Officer to refer the matter to the Court for determination of compensation. 70. 00 per Are. The respondents were of the opinion that the offer of compensation made by the Land Acquisition Officer was inadequate. Therefore, they made applications in writing requiring the Land Acquisition Officer to refer the matter to the Court for determination of compensation. Accordingly, references were made to the District Court, Junagadh, which were numbered as Land Reference Cases No. 65/88 and 66/88. In the reference applications, the respondents claimed that having regard to the prevailing price of the agricultural lands situated nearby as well as income derived by them from the sale of agricultural produces, they were entitled to compensation at the rate of Rs. 800. 00 per Are. The reference applications were contested by the present appellants vide common written statement Exh. 16. In the reply, it was pleaded by the appellants that the market price was properly determined by the Land Acquisition Officer and as compensation offered to the claimants was just and adequate, reference applications should be dismissed. Upon rival assertions of the parties, necessary issues for determination were raised by the reference court. In order to substantiate the claim advanced in the reference application, the claimants had examined, (1) Makabhai Morabhai at Exh. 29 and (2) Goganbhai Visabhai at Exh. 30. The witnesses examined on behalf of the claimants had produced true certified copy of Village Form 7/12 to establish that the lands which were acquired had facility of well and the claimants used to fetch water from the well and also used to take two crops in a year. It may be mentioned that on behalf of the appellants no one was examined to substantiate the assertions made in the written statement. On appreciation of evidence, the reference court held that reliable sale instances were not available for determination of compensation. The reference Courst relied upon oral evidence led by the claimants to determine compensation of the acquired lands on the basis of yield. The reference Court referred to the oral depositions of witnesses examined on behalf of the claimants and held that the net income derived by the claimants from the sale of agricultural produces was Rs. 1600/- per bigha. The reference Court was of the opinion that having regard to the facts of the case, multiplier of 12. The reference Court referred to the oral depositions of witnesses examined on behalf of the claimants and held that the net income derived by the claimants from the sale of agricultural produces was Rs. 1600/- per bigha. The reference Court was of the opinion that having regard to the facts of the case, multiplier of 12. 5 was required to be applied in order to ascertain the net income per bigha and calculated that the net income per bigha was Rs. 20,000. 00. Thereafter the reference Court divided the said figure by 16 in order to ascertain the market value of the acquired lands per Are. The reference Court noted that the claimants had tendency to exaggerate the income derived from the lands and ultimately held that the market value of the acquired lands on the date of notification under section 4 (1) of the Act was Rs. 400. 00 per Are by common award dated 7/10/1993, giving rise to these appeals. ( 3 ) MR. M. R. Raval, learned counsel for the appellants submitted that the compensation awarded by the Land Acquisition Officer was fair as well as adequate and, therefore, additional amount of compensation should not have been awarded by the reference court. It was stressed that no cogent and reliable evidence was led by the claimants to establish income derived by them from the sale of agricultural produces and, therefore, yield method should not have been adopted by the reference court for the purpose of ascertaining market value of the acquired land. It was asserted by the learned Counsel for the appellants that the method of arriving at net income derived from sale of crops was not only illegal, but not warranted by any of the methods known to law for the purpose of ascertaining market value of the acquired lands and, therefore, common award should be set aside. It was further stressed that in view of the judgments of the Supreme Court holding that 50% should be deducted towards cultivation expenses and multiplier of more than ten should not be adopted while ascertaining market value of the acquired lands on yield basis, the appeals filed by the State Government and another should be accepted. It was further stressed that in view of the judgments of the Supreme Court holding that 50% should be deducted towards cultivation expenses and multiplier of more than ten should not be adopted while ascertaining market value of the acquired lands on yield basis, the appeals filed by the State Government and another should be accepted. It was also stressed on behalf of the appellants that the claimants did not establish before the reference court that they were deriving particular income from sale of agricultural produces and, therefore, reference Court ought to have dismissed the reference applications. In the alternative, the learned Counsel vehemently submitted that the claimants are not entitled to solatium on additional amount of compensation payable under section 23 (1-A) of the Act and, therefore, the direction given by the reference Court to pay solatium on additional amount of compensation payable under section 23 (1-A) of the Act also deserves to be set aside. ( 4 ) MR. C. L. Soni,learned Counsel for the claimants pleaded that oral evidence adduced by the claimants regarding quantity of crops raised as well as income derived from sale thereof was never challenged by the appellants and, therefore, the appeals which are directed against a just and reasonable award of the refernce court should be dismissed. The learned Counsel for the claimants further highlighted that the sale instances were not available to enable the Court to determine market value of the acquired lands and, therefore, the reference court did not commit any error in placing reliance on the evidence of the claimants regarding income derived by them from the sale of agricultural produces while determining market value of the lands on the basis of yield. The learned Counsel produced order dated 13/12/1996 passed by the Supreme Court in Civil Appeal Nos. 16945-16964 of 1996 whereby determination of market value of the lands acquired in that case on the same basis as is adopted by the reference court in these cases, was upheld by the Supreme Court subject to direction to deduct 50% as cultivation expenses and to apply multiplier of 10 instead of 12. 16945-16964 of 1996 whereby determination of market value of the lands acquired in that case on the same basis as is adopted by the reference court in these cases, was upheld by the Supreme Court subject to direction to deduct 50% as cultivation expenses and to apply multiplier of 10 instead of 12. Placing reliance on said decision, it was submitted that the witness examined was found to be reliable by the reference Court and, therefore, this Court should not set aside determination of market value of the acquired land made by the reference Court on the basis of income derived from agricultural produces and the appeals should be dismissed. ( 5 ) WE have heard the learned Counsel for the parties at length and also taken into consideration the record of the case. It is relevant to notice that agricultural lands of village Miti (Ghed), Taluka : Mangrol, District : Junagadh were placed under acquisition pursuant to publication of notification on 1/12/1971, which was issued under section 4 (1) of the Act. The Land Acquisition Officer therein had determined market value of the lands acquired in that case at different rates for different lands. In some cases, he had determined market price at Rs. 3. 00 per Are; whereas he had determined market price at Rs. 88. 00 per Are in other cases. The claimants had sought references and claimed compensation at the rate of Rs. 625. 00 per Are. The reference court by common judgment and award dated 15/09/1993 had determined market price of the lands acquired in that case at the rate of Rs. 325/- per Are. The copy of that award was produced by learned Counsel for the claimants for our perusal. It indicates that the reference Court had totalled the figure of income stated by witnesses examined on behalf of the claimants and determined market value after dividing said total by number of witnesses examined. Thereupon, the State of Gujarat and others had instituted First Appeals No. 2530/95 to 2549/95 challenging the said common award. The matter had come-up for hearing before the Division Bench comprising N. J. Pandya and S. K. Keshote, JJ. and the Division Bench had passed following order on 22/09/1995 ;-"the amount awarded by the trial court takes care of all the eventualities, when the basis is crop-yield method. The matter had come-up for hearing before the Division Bench comprising N. J. Pandya and S. K. Keshote, JJ. and the Division Bench had passed following order on 22/09/1995 ;-"the amount awarded by the trial court takes care of all the eventualities, when the basis is crop-yield method. He has, no doubt, noted that the witnesses are interested in giving exaggerated figures and he has also noted wide variations coming out of depositions of various claimants in the course of the deposition before the trial court. But, when on the basis of the data figure available with him he has reduced the Are value by slashing it down to almost one-third of the figure worked out on the basis of the material, there is no reason for this court to interfere. Hence, these appeals are rejected. "the order passed by the Division Bench was subjected to appeal before Supreme Court and Supreme Court in Civil Appeals No. 16945-16964 of 1996 passed following order on 13/12/1996:-"in THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 16945-16964 OF 1996 (Arising out of SLP (C) No. 13322-41 of 1996) The State of Gujarat and Ors. . . . Appellants vs. Rama Rana and Ors. . . . Respondents o R D E R delay condoned. Leave granted. We have heard learned Counsel on both sides. These appeals by special leave arise from the judgment of the Gujarat High Court, made on September 22, 195 in F. A. Nos. 2532-2549/95. A total extent of 68 hectares 62. 5 sq. mts. of land was acquired for irrigation scheme by publication of the notification under section 4 (1) of the Land Acquisition Act, 1894 (1 of 1894) (for short "the Act") on 25/08/1977. The Land Acquisition Officer in his award dated 27/03/1978 awarded compensation at the rate of Rs. 2023. 50 ps. per acre for the dry crop lands, Rs. 3035. 25 for the irrigated lands, Rs. 40. 47 for the waste lands. On reference under section 18 of the Act, the Asstt. District Judge by his award and decree dated 13/09/1993 enhanced the compensation to Rs. 325/per acre to all the lands irrespective of the classification. On appeal, the High Court in the impugned judgment confirmed the same. Thus, these appeals by special leave. The reference court proceeded on the premises that there are no sale deeds exhibited for determination of the compensation. 325/per acre to all the lands irrespective of the classification. On appeal, the High Court in the impugned judgment confirmed the same. Thus, these appeals by special leave. The reference court proceeded on the premises that there are no sale deeds exhibited for determination of the compensation. Therefore, the oral evidence was relied upon to determine the compensation, on the basis of the yield. 8 witnesses came to be examined in proof of the yield of the acquired lands. One of the witnesses was the Sarpanch of the village and his evidence was accepted. The reference Court also found that the witnesses exaggerated the yield. On that basis, it determined the market value after deducting 1/3 towards prices at Rs. 325. 00 per acre. It would be common knowledge that expenditure would be involved in raising and harvesting the crops and that, therefore, on an average 50% of the value of the crop realised would go towards cultivation expenses. Therefore, deduction of 1/3rd was not correct in determining the compensation of the lands on the basis of yield. It is undoubtedly true that one of the methods of determination of compensation, in the absence of best evidence, namely, sale deeds, is the realised value of the crop. Normally, they should have produced the statistics from the Agricultural Department as to the nature of the crops and the prices prevailing at that time. But, unfortunately, neither claimants nor the Government took any steps to adduce that best evidence. It is a fact that the Government have failed to adduce any evidence in that behalf. However, we cannot reject the oral evidence of the witnesses on that ground alone. The court has statutory duty to the society to subject the oral evidence to great scrutiny, applying the test of normal prudent man,i. e. whether he would be willing to purchase the land at the rates proposed by the Court. On the touch stone of this, the Court should evaluate the evidence objectively and dispassionately and reach a finding on compensation. The reference Court has accepted the evidence of the Sarpanch to be the reliable person. Therefore, we proceed onthat premise. The appropriate multiplier should be of 10 years as settled by several judgments of this Court. Necessarily, 50% of the net value towards cultivation expenses requires to be deducted. The reference Court has accepted the evidence of the Sarpanch to be the reliable person. Therefore, we proceed onthat premise. The appropriate multiplier should be of 10 years as settled by several judgments of this Court. Necessarily, 50% of the net value towards cultivation expenses requires to be deducted. The award of the reference Court as confirmed by the High Court stands set aside and the value of the crop as determined by the reference Court at Rs. 2,050/as average annual income stands upheld. Multiplier of 10 years should be applied and deduction of 50% towards cultivation expenses should be made. After giving deduction, the balance will be the net value of the land. On that basis, the claimants are entitled to Rs. 20,500. 00 per acre with solatium @ 30% on enhanced compensation and interest on enhanced compensation @ 0. 9% per annum for one year from the date of taking possession and 15% per annum till date of deposit into the court under the Act as amended by Act 68 of 1984, namely 30% solatium on the enhanced compensation, interest on the enhanced compensation from the date of taking possession for one year at 9% and thereafter at 15% till date of deposit. The appeals are accordingly, allowed. No costs. Sd/- (K. Ramaswamy, J.) sd/- ( G. T. Nanavati, J.) New Delhi 13/12/1996. " ( 6 ) AFTER the above referred to order was passed by the Supreme Court, the State of Gujarat and others had filed Review Petitions No. 1134-1153/97 in Civil Appeals No. 16945-16964/96 and following order was passed by the Court on 4/08/1997 :-"supreme COURT OF INDIA RECORD OF PROCEEDINGS Review Petition Nos. 1134-1153/97 In Civil Appeals No. 16945-16964/96 State of Gujarat and Ors. . . . . . Petitioners vs. Rama Rana and Ors. . . . . Respondents (with appln. for c/delay in filing RPs and clarification) Date: 4. 8. 1997 CORAM : honble Mr. Justice s. C. Agrawal honble Mr. Justice g. T. Nanavati For the Appellant (s) : mr. Adhyaru Yashank Pravin, Adv. Mrs. Hemantika Wahi, Adv. Ms. Sumita Hazarika, Adv. For the Respondent (s) mr. Ranjit Kumar, Adv. Mr. H. A. Raichura,adv. UPON hearing Counsel the Court made the following O R D E R delay condoned. In the Order dated 13/12/1996 at page 3 for the words "the claimants are entitled to Rs. Adhyaru Yashank Pravin, Adv. Mrs. Hemantika Wahi, Adv. Ms. Sumita Hazarika, Adv. For the Respondent (s) mr. Ranjit Kumar, Adv. Mr. H. A. Raichura,adv. UPON hearing Counsel the Court made the following O R D E R delay condoned. In the Order dated 13/12/1996 at page 3 for the words "the claimants are entitled to Rs. 20,500/per acre" the words "the claimants are entitled to Rs. 10,250. 00 per bigha" shall be substituted. The review petitions are disposed of with this modification. No order as to costs. Sd/- sd/- (Vijay Kumar Sharma) (Gopi Balaui) Court Master court Master Signed order is placed on the file. " thereafter, the State of Gujarat and others had filed I. A. Nos. 41-60 in R. P. (C) Nos. 1134-1153/97 in C. A. Nos. 16945-16964/96 for clarification/modification of the order and those I. As. were dismissed by order dated 17/03/1998. ( 7 ) IT is undoubtedly true that one of the methods of determination of compensation, in the absence of best evidence, namely, sale deeds, is the realised value of the crop and normally, the claimants should produce the statistics from the Agriculture Department as to the nature of the crops and the prices prevailing at the relevant time. But, unfortunately, neither claimants nor the Government took any steps to adduce that best evidence. The fact remains that the appellants failed to adduce any evidence in that behalf. It is also true that the claimants should adduce reliable evidence regarding income realised from crops and left to us, we would have remanded the matter to the reference Court with liberty to the parties to lead evidence regarding income realised from crops because average method adopted by reference Court is hardly satisfactory. But, in view of order of the Supreme Court which is quoted above, such a course is not permissible. As observed by the Supreme Court in the said order, oral evidence of the witnesses regarding income from crops cannot be rejected, as it is statutory duty of the Court to the society to subject the oral evidence to great scrutiny and thereafter to determine market price of the acquired lands. We find that the facts before the Supreme Court and facts of the present case are almost identical. Here, in this case also, the reference Court has accepted the evidence of Makabhai Merabhai Exh. 29 and Goganbhai Visabhai Exh. 30. We find that the facts before the Supreme Court and facts of the present case are almost identical. Here, in this case also, the reference Court has accepted the evidence of Makabhai Merabhai Exh. 29 and Goganbhai Visabhai Exh. 30. The Supreme Court in similar circumstances relied upon the evidence of the Sarpanch and determined market value of the lands acquired which were subject matter of appeals before the Supreme Court. The evidence of the witnesses examined on behalf of the claimants would indicate that the acquired lands were fertile and the claimants were able to take two crops in a year. This assertion on the part of the claimants is amply born out from the revenue record produced in the form of 7/12 Village Form. Witness Makabhai Morabhai stated in his evidence that the lands acquired were irrigated lands and the lands had irrigation facility of Kalindi Irrigation Scheme. The witness claimed before the Court that the price of lands per Bigha was Rs. 25,000. 00. The witness asserted before the Court that the claimants used to sow groundnut and sometime wheat as well and also gram and used to take 30 maunds of groundnut and 40 maunds of wheat per bigha. The witness also stated before the Court that the claimants used to sow cotton and in the year 1983 one maund groundnut fetched RS. 150. 00;whereas one maund of wheat fetched RS. 50. 00, and one maund of gram fetched Rs. 50 to 60. The witness further claimed before Court that the claimants used to sow sugarcane which fetched Rs. 900. 00 to Rs. 1000. 00 per bigha and thus, the income from the crops per bigha was Rs. 5000. 00 every year. We may state that though the witnesses examined on behalf of the claimants were subjected to cross-examination, this part of their evidence was not challenged by the appellants at all. On scrutiny of evidence of witness of witnesses examined, we find that the conclusion drawn by the reference Court that the net annual yield per bigha was Rs. 1600. 00, cannot be said to be erroneous in view of the order passed by the Supreme Court, which is quoted hereinabove. On scrutiny of evidence of witness of witnesses examined, we find that the conclusion drawn by the reference Court that the net annual yield per bigha was Rs. 1600. 00, cannot be said to be erroneous in view of the order passed by the Supreme Court, which is quoted hereinabove. However, as per the direction of the Supreme Court, 50% ought to have been deducted towards cultivation expenses and multiplier of 10 ought to have been applied for the purpose of determining market value of the land acquired on the basis of yield. Calculated on the basis indicated by the Supreme Court, market value of the acquired lands would be Rs. 500. 00 per Are. However, as noted earlier, the reference court has determined market value of the acquired lands at Rs. 400. 00 per Are. The claimants have neither filed appeals claiming higher compensation than awarded by the reference Court, nor filed cross- objections in the appeals instituted by the State and another. Therefore, they are not entitled to more compensation than determined by the reference court, but the appeals filed by the State Government and another cannot be allowed on the quantum when it is found that determination of compensation of acquired lands at the rate of Rs. 400/per Are is neither excessive nor unreasonable. On the contrary, we notice that the determination of market value by the reference court will have to be upheld in view of the order passed by the Supreme Court which is quoted earlier. Therefore, the State appeals on the question of determination of compensation payable to the claimants, cannot be accepted at all. ( 8 ) IN the operative part of the impugned judgment and award,reference court has ordered that the acquiring authority shall pay additional compensation to the claimants as shown in Annexure-A attached to the judgment with running interest at the rate of 9% per annum for the first year from the date of award and for subsequent period till the date of payment, with running interest at the rate of 15% per annum with proportionate costs. A bare look at Annexure-A which forms part of the impugned award makes it evident that the additional compensation determined by the reference court as payable includes solatium to be paid on the additional amount of compensation payable under section 23 (1-A) of the Act. A bare look at Annexure-A which forms part of the impugned award makes it evident that the additional compensation determined by the reference court as payable includes solatium to be paid on the additional amount of compensation payable under section 23 (1-A) of the Act. Such a direction could not have been given in view of the judgment of the Supreme Court rendered in the case of State of Maharashtra v. Maharau Srawan Hatkar, Judgment Today 1995 (2) SC 583. The pertinent observations made by the Supreme Court in Para-7 of the reported decision are as under :-"it would thus be seen that the additional amounts envisaged under sub-ss. (1-A) and (2) of S. 23 are not part of the component of the compensation awarded under sub-s. (1) of S. 23 of the Act. They are only in addition to the market value of the land. The payment of interest also is only consequential to the enhancement of the compensation. In a case where the Court has not enhanced the compensation on reference, the Court is devoid of power to award any interest under S. 28 or the spreading of payment of interest for one year from the date of taking possession at 9% and 15% thereafter till date of payment into the Court as envisaged under the proviso. "therefore, the operative part of the order in so far as it directs the appellants to pay the amount envisaged under section 23 (2) of the Act on the amount payable under section 23 (1-A) of the Act, is concerned, will have to be set aside and are hereby set aside. FOR the foregoing reasons, both the appeals are partly allowed. It is held that the claimants are entitled to compensation at the rate of Rs. 400. 00 per Are. It is further held that the claimants shall not be entitled to solatium on the additional amount of compensation payable under section 23 (1-A) of the Act. Rest of the award is not disturbed at all. There shall be no order as to costs. Office is directed to draw decree in terms of this judgment. .