Research › Search › Judgment

Gujarat High Court · body

2009 DIGILAW 661 (GUJ)

State of Gujarat v. Barvant Harilal Mehta

2009-10-09

K.M.THAKER, M.S.SHAH

body2009
Judgment K.M. Thaker, J.—In this group of appeals, preferred under Section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) read with Section 96 of code of Civil Procedure 1908 (hereinafter referred to as the Code) the State of Gujarat and the Executive Engineer, Bhavnagar irrigation Project Division (hereinafter referred to as the appellants) have challenged award dated 10.1.2003 passed by the learned 4th Joint Civil Judge (S.D.) Bhavnagar in Reference Case No. 310/91 to 315/91, 316/91 and 317/91 to 326/91 and 479/91 to 527/91 whereby the Reference Court has awarded Rs. 900/- per Are as additional compensation for irrigated lands and Rs. 600/- per Are as additional compensation for non-irrigated lands. The Reference Court has also allowed other statutory increases. Although the LAQ awards were separately made by the Land Acquisition Officer (‘LAO’ for short) and the respective notifications under Section 4 were issued separately, the purpose for which the lands in question came to be acquired being common and the gap between the two respective notifications under Section 4 being only of few days, the Reference Court decided the said reference cases by the common award dated 10.1.2003 which is impugned in present appeals. Since all the appeals arise from the same common award and the dispute and claim are common to all landowners (‘claimants’ for sake of brevity), all captioned appeals are decided by this common judgment. 2. The said reference cases arose from two separate awards dated 31.3.1989 and 14.12.1989 made by the LAO in LAQ case Nos. 5 of 1987 and 17 of 1987 whereby the LAO had awarded Rs. 140 per Are for irrigated land and Rs. 90 per Are for non-irrigated land. 3. The lands in question came to be acquired under the provisions of the Act at the behest of the Executive Engineer, Bhavnagar Irrigation Scheme (hereinafter referred to as the “Acquiring Body” or the “appellant”) who made the proposal dated 23.3.1987 to acquire the lands in question situate in the revenue limit of village Limbali, Taluka Gadhada for the public purpose of Limbali irrigation scheme. The State Government, after scrutiny of the requisition, was satisfied about the purpose and the requirement and consequently the notification under Section 4 was published on 25.9.1987 which was followed by the notification under Section 6 published on 3.12.1987 which culminated in the LAO’s award dated 14.12.1989 (in LAQ case No. 17 of 1987) and another notification under Section 4 for acquisition of lands of the same village and for the same scheme was issued on 30.9.1987 and was followed by notification under Section 6 issued on 9.2.1988 which culminated into LAO’s award dated 31.3.1989 (in LAQ case No. 5 of 1987). Being aggrieved by the said awards by LAO, the claimants demanded that reference under Section 18 of the Act may be made. Hence, the competent authority made reference cases in which the impugned award came to be passed. Before the Reference Court the claimants made claim for compensation at the rate of Rs. 1850/- per Are for irrigated land and Rs. 1200/- per Are for non-irrigated land and also asked for further compensation for wells and trees. The reference case no 316 of 1991 was treated as the main reference case wherein the proceedings, including the evidence, were recorded. 4. After considering the material on record and the submissions of the contesting parties the Reference Court enhanced the rate of compensation by allowing additional compensation, as aforesaid, at the rate of Rs. 900/- per Are for irrigated land and Rs. 600/- per Are for non-irrigated land. The appellants are aggrieved by the said enhancement and directions. Hence, the appeals. 5. The appeals came to be admitted in August 2003 and a conditional order of interim relief, in favour of the appellants, was granted. The interim relief was granted on the condition that the appellants shall deposit the entire amount as per the reference Court’s award, along with the cost and interest. Subsequently another order was passed in February 2004 whereby the claimants were allowed to withdraw 35% of the deposited amount with further direction that the balance 65% shall be invested in FDR. As regards the deduction toward Income Tax, the Court, upon taking note of the objections of the claimants, kept the issue open, to be decided at the time of final hearing. As regards the deduction toward Income Tax, the Court, upon taking note of the objections of the claimants, kept the issue open, to be decided at the time of final hearing. 5.1 It also appears from the record that at an earlier point of time one of the claimants had filed cross objection, however, the said cross objection came to be dismissed on account of non-prosecution by order 28.11.2005 and thereafter no attempt for its restoration, appears to have been made. As per record any other cross objections were not filed and, in any case, at the time of hearing of these appeals the claimants have not raised any issue regarding the cross objection or any demand for enhancement beyond the rate awarded by the Reference Court. 6. Mr. Umesh Trivedi, learned Additional Government Pleader appeared for the appellants and Mr. P.V. Hathi learned Advocate appeared for the claimants. We have heard the learned advocates of the respective parties at length. 7. Before proceeding further it is appropriate to mention that for the purpose of the very same irrigation scheme viz. Limbali irrigation project, certain other lands of adjoining village i.e. village Rampara, which has common boundary with the village Limbali, were also acquired pursuant to a proximate notification under Section 4 which was issued on 4th June 1987. From the said acquisition 6 reference cases had arisen which were decided just 18 days after the impugned award was passed by the Reference Court on 28.1.2003. It also deserves to be mentioned that the said subsequent award dated 28.1.2003 was challenged in this Court by way of First Appeals No. 426 of 2004 to 431 of 2004 which came to be decided by this Court by judgment dated 11.12.2006. While relying on the said judgment the claimants have asserted that the said judgment has been accepted by the appellants and is also complied with inasmuch as the claimants of the said cases have been paid the compensation and other rights in accordance with the judgment. 8. Mr. Trivedi learned Additional Government Pleader appearing for the appellants has assailed the impugned award and submitted that the Reference Court has committed serious errors of law and facts in allowing the reference cases and enhancing the rate of compensation over and above the award of the LAO. 8. Mr. Trivedi learned Additional Government Pleader appearing for the appellants has assailed the impugned award and submitted that the Reference Court has committed serious errors of law and facts in allowing the reference cases and enhancing the rate of compensation over and above the award of the LAO. He submitted that there was neither any scope nor any justification to enhance the rate of compensation beyond the rate awarded by the LAO which was just and adequate. He further submitted that the Reference Court seriously erred in ignoring the sale deeds available on record and also in appreciating the oral and documentary evidence placed on record by the appellants. He, in particular, referred to the sale deed Exhibit 58 and also the evidence of Mr. Magan Shambhu and assailed the decision of the Reference Court to not to rely on the sale instances on the ground that the sale-deeds, as per the evidence on behalf of the claimants, reflected lower sale price than the actual sale price because the respective parties had, in the said documents, mentioned lower sale price than the actual so as to save the cost towards registration/stamp. He also assailed the decision of the Reference Court of adopting yield-and-capitalization method when sale instances were available on record. 9. On the other hand, the claimants, while supporting the impugned award, relied on the judgment dated 11.12.2006 of this Court in First Appeal No. 426 of 2004 to 431/2004 in connection with the adjoining Rampara village. Mr. Hathi, learned Advocate for the claimants submitted that the evidence pertaining to the yield/agricultural income from the lands in question was cogent and direct evidence and the Reference Court has not committed any error in adopting yield-and-capitalization method after having reached the conclusion that the sale deeds were not reliable or acceptable. He urged that the award impugned in these appeals does not warrant interference, and deserves to be confirmed, particularly in view of the judgment of the Division Bench of this Court in First Appeal No. 426 of 2004 to 431/2004 in respect of the adjoining village. 10. The claimants have submitted a Civil Application being CA No. 9509 / 2009 seeking production of a copy of the above referred judgment dated 11.12.2006 delivered by another Division Bench of this Court in FA No. 426 of 2004 to 431/2004 and also an affidavit. 10. The claimants have submitted a Civil Application being CA No. 9509 / 2009 seeking production of a copy of the above referred judgment dated 11.12.2006 delivered by another Division Bench of this Court in FA No. 426 of 2004 to 431/2004 and also an affidavit. Any counter affidavit opposing the said civil application and/or the affidavit made by Mr. B.H. Mehta is not filed by the appellants. In the facts of the case, particularly the fact that the said Rampara village is an adjoining village and that in the reference cases concerned in the said appeals being First Appeal Nos. 426 of 2004 to 431 of 2004 also the reference court had proceeded by adopting the yield method, we deem it feet to allow the request for production of additional evidence and to take into consideration the judgment dated 11.12.2006 by the Division Bench of this Court in the aforesaid appeals i.e. First Appeal Nos. 426 of 2004 to 431 of 2004. 10.1 The claimants have submitted that both villages are adjoining villages and the irrigation project for which the lands in village Rampara came to be acquired and the project for which the lands in present case (i.e. in village Limbali) were acquired is the same project i.e. Limbali irrigation project. The notifications under Section 4 were issued within span of about 2-3 months and LAO’s awards were made with the gap between the gap of 5 months while the awards of the Reference Court are made within 18 days. The appeals against the award of Reference Court in case of village Rampara came to be decided by judgment dated 11.12.2006. 11. As mentioned earlier the LAO had, by his awards dated 31.3.1989 and 14.12.1989, determined Rs. 140/- per Are for irrigated land and Rs. 90/- per Are for non-irrigated land, whereas the claimants demanded Rs. 1850/- per Are for irrigated lands and Rs. 1200/- per Are for non-irrigated land. As against the said demand, the Reference Court determined the market value at Rs. 1040/- per Are i.e. additional rate at Rs. 900/- per Are for irrigated land and Rs. 690/- per Are i.e. additional Rs. 600/- per Are for non-irrigated land. 1850/- per Are for irrigated lands and Rs. 1200/- per Are for non-irrigated land. As against the said demand, the Reference Court determined the market value at Rs. 1040/- per Are i.e. additional rate at Rs. 900/- per Are for irrigated land and Rs. 690/- per Are i.e. additional Rs. 600/- per Are for non-irrigated land. 11.1 It is, true that so long as reliable sale instances, for purpose of determining the purpose of market value are available, ordinarily the yield method ought not to be resorted to, particularly when any cogent evidence about the yield and about the prevailing actual sale price for the produce for sufficient number of years i.e. for past about 4 to 5 years, the quantum of expenditure, quantity produced and sold during about same span etc. are not placed on record and are not duly proved by the claimants so as to enable the Court to ascertain average yield and also the average price and income, inasmuch as the yield and the expenses and income may - due to the monsoon and such other factors - be high or law in one year and it may be otherwise in the preceding or subsequent year. 12. Before proceeding it is necessary to take note of the opponent’s objection regarding the contradicting stand adopted by the appellants. It is claimed by the appellants that the appellants had objected and opposed the sale deeds produced by the claimants on the ground that the same were not reliable whereas now the appellants are making reference of the sale deeds including the sale-deeds produced by the claimants. Despite such objection and contradicting stand by the appellants, we have examined the entire documentary and oral evidence obtaining on record including all sale instances, produced by both sides, available on record. 13. In present case, during the proceedings before the Reference Court, the claimants examined five witnesses viz. Bolvantrai Haribhai (Exhibit 23), Maganbhai Shambhubhai (Exhibit 66), Gordhanbhai Kurjibhai (Exhibit 212), Hathibhai Dadubhai (Exhibit 213) and Bachubhai Nanjibhai (Exhibit 214). The appellants, on the other hand, examined Mr. Ramjibhai U Solanki (Exhibit 76) and Bhailalbhai D. Dungarani- Deputy Executive Engineer (Exhibit 132) as their witnesses. Bolvantrai Haribhai (Exhibit 23), Maganbhai Shambhubhai (Exhibit 66), Gordhanbhai Kurjibhai (Exhibit 212), Hathibhai Dadubhai (Exhibit 213) and Bachubhai Nanjibhai (Exhibit 214). The appellants, on the other hand, examined Mr. Ramjibhai U Solanki (Exhibit 76) and Bhailalbhai D. Dungarani- Deputy Executive Engineer (Exhibit 132) as their witnesses. Several documents, by both sides, were produced before the Reference Court including the 7/12 forms (Exhibits 77 to 103 and Exhibits 146 to 165) as well as certain sale instances (Exhibits 105 to 108 and Exhibits 57 to 61) evidencing sale transaction of lands. A map showing the location of lands in question was also produced, at Exhibit 109 on the record. 14. It is pertinent that one of the witnesses Mr. Maganbhai Shambhubhai in his evidence (Exhibit 66) while referring to the transaction relating to the land bearing survey No. 108 and land bearing survey No. 129, stated that the actual price paid for the said parcels of land was Rs. 50,000/-, however in the sale deed the price mentioned was only Rs. 15,000/-. In his evidence (Exhibit 212) Mr. Gordhanbhai Kurjibhai has, with regard to Exhibit 107, stated that so as to save on the cost and expenses towards registration/stamp the sale price was mentioned on lower scale than the price of Rs. 15000/- per Bigha paid by them and that actually the prevailing price was about Rs. 20,000/- per Bigha but they could purchase at lesser price due to settlement. He also stated that the land concerned in Exhibit 57 was actually purchased for Rs. 50,000/- to 52,000/- per Bigha. In his evidence the third witness Mr. Hathibhai Dabhubhai stated, with regard to Exhibit 106 and 108, that they had sold their lands at very law price because the tillers were not ready to give-up the possession and tenancy litigation was going on. The Reference Court has, taking note of such evidence of the witnesses reached to the conclusion to not to rely on any of the sale deeds on the ground that the sale deeds, as per the evidence of witnesses, disclosed less or lower sale price, than the actual price of the transaction. 15. We, however, in view of the judgment of the Hon’ble Apex Court (AIR 2004 SC 2845) are not of the view to outrightly disregard the sale instance and will, therefore, consider the sale instances. 15. We, however, in view of the judgment of the Hon’ble Apex Court (AIR 2004 SC 2845) are not of the view to outrightly disregard the sale instance and will, therefore, consider the sale instances. Before taking up the sale instances, it is appropriate, at this stage, to note that it has come on record - as observed by the Reference Court in Para 11 and Para 28 of the impugned judgment, in light of the evidence of witnesses - that in view of the Malgadh irrigation scheme, (in respect of which award was made in August 1985), the prices of the lands in Limbali village had witnessed rise since the land owners who lost their lands in village Bhadli (about 4 k.m. away from present village Limbali) had started purchasing lands in Limbali village. 15.1 Now, so far as Exhibit 57 and 59 are concerned the Reference Court has taken note of the evidence of Mr. Maganbhai Shambhubhai who stated in his evidence that with a view to saving cost and expenses towards registration/stamp, less than actual sale price was mentioned in the sale deed. Evidence to similar effect has been given by another witness Mr. Bachubhai, who was member of Taluka & Deistrict Panchayat. He stated that for want of sufficient funds for stamp & registration, the villagers used to mention sale price on lower scale. Hence, the said document is also disregarded by the Reference Court. 15.2 Exhibit 58 pertains to land bearing survey No. 108 in respect of which the sale deed was executed in September 1979 by which land admeasuring about 8000 sq. meter was sold at the rate of Rs. 185 per Are. The Reference Court has, on this count, noted that the said sale deed is of a date prior to the Malgadh irrigation scheme (for which the award was rendered in August 1985) and that even otherwise it pertained to period almost eight years before the date of Section 4 notification. The Reference Court has, therefore, not considered it is a proper and acceptable sale instance as base for determining the market price of lands in question. 15.3 This brings in picture Exhibit 61. So far as Exhibit 61 is concerned it pertains to irrigated lands situate in the adjoining village Rampara and is concerning a transaction executed almost 10 years after the date of notification under Section 4 in present case. 15.3 This brings in picture Exhibit 61. So far as Exhibit 61 is concerned it pertains to irrigated lands situate in the adjoining village Rampara and is concerning a transaction executed almost 10 years after the date of notification under Section 4 in present case. Further, any person connected with the said transaction is not examined. Resultantly the details about its nature, quality, distance, and whether it was converted into Non-Agricultural or not etc. are not available. In this view of the matter said Exhibit 61 deserves to be avoided while determining the market price. 15.4 The Exhibit 57 appears to be contemporaneous inasmuch as it pertains to transaction executed in January 1987 (i.e. about 8 months before the notification under Section 4 in present case). The parcel of lands concerned in this transaction were of irrigated land. As per Exhibit 57 land admeasuring 4148 sq. mtr. was sold at the rate of Rs. 905/- per Are in January 1987 and it was irrigated land. 15.5 Thus, obviously, as compared to Exhibit 61 (which pertains to transaction of July 1998 i.e. 11 years after the Section 4 notification and in respect of which any witness is not examined) the Court would tend to lean towards more contemporaneous sale deed i.e. Exhibit 57. 16. We have noticed that Exhibit 108 for Survey No. 55/paiki (concerning transaction of land admeasuring 4 acres at the rate of Rs. 43/- per Are) was executed in June 1984. The Exhibit 107 concerning survey no 17 paiki for land admeasuring about 32,000 sq. mtr. was executed in December 1984 for about Rs. 62 per Are and Exhibit 106 as well as Exhibit 105 pertaining survey No. 17 paiki and 13 paiki for land admeasuring about 16,000 sq. mtr. were executed on 1st June 1984 for about Rs. 62 per Are and for about Rs. 93 per Are respectively. 16.1 The aforesaid instances though executed over a span of 6 months between 1st June 1984 and 21st December1984 reflect wide gap ranging from Rs. 43/- per sq. mtr. to Rs. 93/- per sq. mtr. in the 3 documents of same date i.e. 1.6.1984 i.e. in Exh.105, Exh.106 and Exh.108 3 different price have been mentioned i.e. Rs. 93/- per Are, Rs. 62/- per Are and Rs. 43/- per Are, respectively. 17. Mr. 43/- per sq. mtr. to Rs. 93/- per sq. mtr. in the 3 documents of same date i.e. 1.6.1984 i.e. in Exh.105, Exh.106 and Exh.108 3 different price have been mentioned i.e. Rs. 93/- per Are, Rs. 62/- per Are and Rs. 43/- per Are, respectively. 17. Mr. Trivedi has, however, urged that the Exhibit 58 which was executed in September 1979 for consideration of Rs. 185/- and Exhibit 61 which was executed in July 1998 (i.e. 11 years after Section 4 notification) for consideration of Rs. 408/- per Are, demonstrate and prove that the document Exhibit 57 is not reliable and contains artificial and inflated price/consideration inasmuch as when the rate/market price, as per Exhibit 61, was around 185/- in 1979 and Rs. 408/- in 1998 as per Exhibit 61, and that therefore, it could never be 905/- in January 1987. He also added that the purchaser of Exhibit 57 owned contiguous land, which aspect is not disputed. 18. The Reference Court has, having not found the sale instances reliable/acceptable, considered it appropriate to proceed on the basis of the yield and capitalization method and accordingly the Court has taken into consideration the yield and income from the crops. 18.1 In this context it is necessary to mention that during the hearing before us appellant has raised objection that the yield method should not have been adopted when sale instances were available. The appellants have claimed that the Reference Court should have proceeded on the basis of sale instances and should not have adopted the yield method as the base for determining market value of the lands in question at the time of acquisition. 19. Now, so far as the yield income is concerned, it appears from the award and the evidence of Mr. Balvantrai Haribhai, that the claimants were taking crops of cotton, groundnut, wheat and jeera. 19. Now, so far as the yield income is concerned, it appears from the award and the evidence of Mr. Balvantrai Haribhai, that the claimants were taking crops of cotton, groundnut, wheat and jeera. 19.1 The Reference Court has taken into account yield per vigha of each of the four crops and the price per 20 kilogram for each of the crops and on that basis the Reference Court deduced the income, for each crop per vigha and from such figure of income the Reference Court has allowed deduction towards expenditure at the rate of 50% and arrived at the net income/saving per vigha and to such figure it has applied the multiplier of 10 so as to arrive at per vigha value on yield and capitalization basis. 19.2 While working out the market price as per the yield method, the Reference Court has culled out, from the evidence and with the above referred formula, that the income per Are from the crop of cotton would come to the tune of Rs. 3010/- for groundnut it would come to Rs. 550/- per Are and for wheat it would be the tune of Rs. 777/- per Are while for jeera it would come to Rs. 1290 per Are. It comes out that the claimants had demanded Rs. 1840/- per Are on the basis of combination of crops of groundnut and jeera and the Court compared it with the combination of crops of wheat and jeera and arrived at the conclusion that the ratio would come to Rs. 1320/- per Are. The Reference Court taking base of Rs. 1320/- per Are determined the market price of irrigated land at Rs. 1040/- per Are and for non-irrigated land at Rs. 690/- per Are. 19.3 One of the witnesses has stated that the yield would vary from case to case by about 2 to 5 maund and that if cotton crop is taken then it may not be possible to take 3 crops per year and on some of the acquired lands cotton crop was being taken. 19.4 The Reference Court has taken into consideration the types of crop and has allowed deduction towards expenses and has also acknowledged the fact that the yield in respect of each of the claimants cannot be same or standard. 19.4 The Reference Court has taken into consideration the types of crop and has allowed deduction towards expenses and has also acknowledged the fact that the yield in respect of each of the claimants cannot be same or standard. 19.5 The Reference Court has made reference of the copies of form No. 7 x 12 on which the Court has relied to reach to the conclusion that four types of crops were being reaped amongst the landowners. We have perused the said 7 x 12 forms and on perusal of the said No. 7 x 12 forms, though the type of the crop grown by the land owner in a particular year can be noticed, the sale price of the produce are not discernible from the said form No. 7 x 12. 20. The point which, however, has been lost sight of is that any documentary evidence, except 2 bills viz. Exhibit 68 and 69, was not placed on record to demonstrate and prove the price of the crops and thereby the income of the claimants and more important is the fact that even the available details-data was not representing the relevant details of sufficient span of about 4 to 5 years to enable the Court to arrive at and determine average quantity, price, income etc. 21. It emerges from the facts and from the details regarding available evidence that sufficient evidence necessary for the purpose on hand, was not available. In view of the fact that the legally tenable and relevant evidence in form of bills etc. evidencing the relevant details such as the quantity of the produce, the sale price, the pattern of the crops etc. for sufficient number of years and of enough numbers of land owners, which may assist and guide in arriving at after averaging process, the net income, was not available on record, we find it difficult in light of the limited or insufficient data obtaining on the record, to accept and approve the market price determined by the Reference Court solely on the basis of yield-and-capitalization method. The Reference Court has, however, essentially relied on, as it emerges from the award, only on two bills Exhibit 68 and Exhibit 69 and oral evidence of one witness on behalf of all claimants who also, unfortunately, did not bring on record enough legally relevant and sustainable evidence of sufficient number of years and landowners which may provide reasonable date to arrive at a just and proper average. 22. In view of such inadequate data and insufficient material, it would be risky and not justified to determine the market price of lands of various landowners only on the basis of two invoices/bills for one of the crops (viz. cotton) while no other document evidencing the sale price of other crops for enough number of years to arrive at a safe average was, even as per the award of the Reference Court, available on record. 23. While relying on the judgment of the Division Bench in First Appeal No. 426 of 2004 to 431 to 2004 the claimants submitted that since for adjoining village this Court has confirmed the adoption of yield method and also the determined market price @ Rs. 9/- per sq. mtr. for irrigated and Rs. 6/- for non-irrigated land, the impugned award does not warrant interference. 24. In view of such insufficiency of reliable documentary evidence which may satisfactorily establish the quality of the agricultural produce, the types of crops, yield of the crop over some reasonable period and the sale price etc., the appellant has submitted that when on one hand sale instances were available and on the other hand reliable and sufficient evidence to adopt and apply yield-cum-capitalization method was not available, the Reference Court ought not have adopted and relied on the yield and capitalization method. More so when the evidence which may justify the determination of market price by adopting yield method, was inadequate and insufficient. 24.1 On this count Mr. Trivedi has raised objection and submitted that for such reason duly executed sale deeds cannot be brushed aside. 24.2 It is in such factual background that we consider it appropriate as well as necessary to examine the sale instances as well. 25. 24.1 On this count Mr. Trivedi has raised objection and submitted that for such reason duly executed sale deeds cannot be brushed aside. 24.2 It is in such factual background that we consider it appropriate as well as necessary to examine the sale instances as well. 25. Now, so far as the decision of the Reference Court to not to take into consideration and not to rely upon the sale-deeds in respect of which the concerned witnesses stated that the vendor/vendee had mentioned the sale price on lower scale with a view to save cost on registration/stamp, is concerned, we are of the view that the Reference Court was not justified in completely brushing aside the said sale instances. In this regard, it is appropriate to refer to AIR 2004 SC 2895 wherein the Apex Court has observed that: “. . . The reference Court also had before it the sale deed by which the respondent purchased a portion of the acquired land. As stated above the sale deed was for Rs. 15.40 per sq. yard. Section 92 of the Evidence Act precludes a party from leading evidence contrary to the terms of a written document. It was, therefore, not open to the respondent to urge that, even though his sale deed showed a price Rs. 15.40 per sq. yard the real market value was Rs. 120 per sq. yard. To permit a party to so urge would be to give a premium to dishonesty. Parties who undervalue their documents, for purpose of payment of stamp duty, cannot be allowed to then claim that their own documents does not reflect the correct market value. Therefore as per sale instances of the comparable lands the market value, on dates of sales, were in the region of Rs. 15.37 to Rs. 15.40 per sq. yard. 25.1 In light of the legal position, the sale-deeds ought to have been taken into account and the Reference Court ought to have, after closely and carefully examining the sale-deeds and of course with caution, given due regard to the said sale deeds in the process of determination of market price. 15.37 to Rs. 15.40 per sq. yard. 25.1 In light of the legal position, the sale-deeds ought to have been taken into account and the Reference Court ought to have, after closely and carefully examining the sale-deeds and of course with caution, given due regard to the said sale deeds in the process of determination of market price. Otherwise, as held by Apex Court, if the opponents-claimants are allowed to take a plea contrary to the sale price mentioned in the sale-deeds on the excuse that with a view to saving cost upon registration/stamp incorrect sale price was mentioned, it would amount to giving premium to their dishonesty. 25.2 Thus, the said sale instance cannot be outrightly and completely brushed aside, on the ground which appealed to the Reference Court. 26. From amongst the various sale instances referred to by the parties during the hearing, several sale instances are of 1979 and 1982 i.e. almost 8 to 5 years prior to the date of Section 4 notification. Further, in the facts and circumstances of the case and in light of the material available on record, we are of the view that while considering the sale instances it is not only appropriate but also necessary to take into account, the fact about the Malgadh Irrigation Scheme which, in the interregnum, is said to have been commenced. Now, proceeding farther with such clarification about the approach we have taken in the facts of the case, it needs to be borne in mind that the witnesses have asserted that the sale price prevailing prior to the time when Malgadh Irrigation Scheme commenced and the award was passed, were significantly affected after the said scheme became operational and after rendition of award in August 1985. The four sale instances of 1984 do not appeal much to us, because not only the said instances are of period of three years before the Section 4 notification, but they are also for the period prior to the said Malgadh Irrigation Scheme and they also reflect wide range of variation during short-span of only six months. Further, in view of Exhibit 58 and Exhibit 59 which are said to have been executed in September 1979 and March 1982 respectively for consideration of Rs. 185/- per Are it becomes difficult, in absence of any plausible and palatable explanation, to accept that the market price could be Rs. Further, in view of Exhibit 58 and Exhibit 59 which are said to have been executed in September 1979 and March 1982 respectively for consideration of Rs. 185/- per Are it becomes difficult, in absence of any plausible and palatable explanation, to accept that the market price could be Rs. 43/- or Rs. 63/- or even Rs. 93/- per Are in 1984 i.e. after almost five years since Exhibit 58 was executed or after about two years when Exhibit 59 was executed. 27. This leaves behind the sale instance executed in 1998 i.e. Exhibit 61. As noticed hereinabove earlier, any relevant details regarding the land concerned in the said transaction (details such as the nature and quality of land as compared to the lands in question, its location and distance as compared to the lands in question, basis for comparability, such as whether it was converted into non-agricultural land or not) are not established by any witness. Further, the concerned land was situate at adjoining village Rampara. 28. Hence, for determining the market value on the basis of sale instances, as against Exhibit 61 the Court would, considering the available details regarding Exhibit 57, be left with little alternative but to lean in favour of Exhibit 57, firstly for the reason that the said sale instance concerns larger chunk of land. Secondly it is almost contemporaneous inasmuch as Exhibit 57 is executed in January 1987 while Section 4 notification in present case was issued on September 1987. 29. Thus from amongst the cited sale instances, Exhibit 57 comes closer to the acceptance level. 30. We have, however, also noticed certain striking feature of the said sale instance Exhibit 57 viz. its sale price. It is pertinent that while Exhibit 61 was executed at the rate of Rs. 408/- per Are in 1998 the said Exhibit 57, though executed almost 11 years before the said Exhibit 61, is claimed to have been executed for a price at rate double than the rate mentioned in Exhibit 61. It, therefore, appears that in the determination of the consideration for the transaction effected by virtue of said Exhibit 57, besides the usual circumstances which affect the determination of consideration in a given transaction, speculation (i.e. speculative increase) seems to have played some role. It, therefore, appears that in the determination of the consideration for the transaction effected by virtue of said Exhibit 57, besides the usual circumstances which affect the determination of consideration in a given transaction, speculation (i.e. speculative increase) seems to have played some role. It is also necessary to recall that as per appellants’ submission the purchaser of the land concerned in Exhibit 57 owned contiguous land. Thus, when the purchaser of concerned land is an owner of immediately adjoining (i.e. contiguous) land, he would naturally be ready to pay more price than the prevailing market price, for purchasing a large parcel of contiguous land. Further, it is also obvious, and note can be taken of the fact, that when proposal for acquisition of present land was made in March 1987, the initial formalities such as identification and survey of land must have begun at least in the later part of 1986 which would give rise, in or after January 1987, to speculative increase in the sale price of lands of the concerned village. 31. Thus, when the contemporaneous sale instance appear to have been infected or influenced by certain special circumstances, such as those discussed above, it becomes necessary to allow appropriate deduction, while considering such transactions, to take care of such influencing factors and also to ensure that the normal, and correct market price prevailing at the time of issuance of Section 4 notification can be determined. 32. Resultantly, while accepting, for the reasons discussed hereinabove, said Exhibit 57 for taking it into consideration for determining the market price, it would be, necessary as well as just and proper to allow deduction at the rate of at least 33% so as to accommodate all influencing factors and also to accommodate the special feature/factor i.e. the speculative increase. Hence, deduction of Rs. 298.65/- (i.e. 33%) per Are from Rs. 905/- per Are will have to be allowed. Consequently, on the basis of Exhibit 57 the market price would come to the tune of Rs. 606.35/- per Are (i.e. Rs. 606/-). 33. We, therefore, fix the market price at the rate of Rs. 606/- per Are and since the LAO determined different market price for irrigated and non-irrigated lands i.e. Rs. 140/- per Are for irrigated land and Rs. 90/- per Are for non-irrigated land, the same ratio i.e. difference shall be maintained for calculating the additional compensation. 606/-). 33. We, therefore, fix the market price at the rate of Rs. 606/- per Are and since the LAO determined different market price for irrigated and non-irrigated lands i.e. Rs. 140/- per Are for irrigated land and Rs. 90/- per Are for non-irrigated land, the same ratio i.e. difference shall be maintained for calculating the additional compensation. Thus, the claimants will be entitled for additional compensation after deduction/adjustment of the amount awarded by the LAO from the aforesaid market price (Rs. 606/- per Are) fixed by us. 34. We are conscious of the fact that this Court, while deciding First Appeal No. 426 of 2004 to 431 of 2004 which arose from the acquisition proceedings for the same purpose (however for the land situate in Rampara village), adopted the yield method and on the basis of material available on record determine the net income and on that basis fixed the compensation at Rs. 9/- for Bagayat land and Rs. 6/- for Jeerayat land. 34.1 Though the claimants have relied on the judgment dated 11.12.2006 in the aforesaid appeals, in present case we face the situation of lack of evidence which can establish the very necessary and relevant ingredient or factor viz. comparability of the pattern and quality of crops prevailing in the two villages i.e. said Rampara and the village in question i.e. Limbadi village. Hence, in the facts of the case, and available evidence, we find it difficult to readily accept and rely upon and apply the said judgment in present case. 34.2 The burden to prove the net income from the yield is on the claimants and that therefore ordinarily the claimants should produce statistics data about the nature of crop, price prevailing at the material point of time, quantity of produce etc., for sufficient number of years and of sufficient number of claimants which may guide the Court to arrive at a just and proper average. However, in absence of sufficient evidence from either side in this regard, the oral evidence of landowners may not be outrightly rejected but such oral evidence should be subjected to higher scale of probe and scrutiny. But we also cannot be oblivious of the fact that the quality as well as quantity of evidence necessary for such purpose, was insufficient before the Reference Court. 35. In view of the foregoing discussion and determination of the market price at Rs. But we also cannot be oblivious of the fact that the quality as well as quantity of evidence necessary for such purpose, was insufficient before the Reference Court. 35. In view of the foregoing discussion and determination of the market price at Rs. 606/- per Are, the Reference Court shall calculate the additional compensation payable to the claimants after deducting/adjusting the amounts of compensation determined under its award dated 31.3.1989. The claimants will be entitled for the additional compensation accordingly. 36. The claimants will be entitled for 12 % increase on such additional/enhanced market price (i.e. market price as fixed by us in this judgment after adjustment of the amount awarded earlier) as per Section 23 (1-A) of the Act from the date of notification under Section 4 to the date of award or date of possession whichever was earlier. The claimants will also be entitled for 30% solatium (after adjusting 15% solatium awarded by the LAO) on such market price (i.e. market price as fixed by us in this judgment). However, the claimants will be be entitled for the interest over the 12% increase, the solatium and the amount of additional compensation which may become payable, on the basis of the market price fixed by this judgment, from the date on which the possession was taken to the date of payment. 37. So far as the payment of interest payable on such enhanced amount is concerned, in view of the judgment of the Apex Court in Rama Bai vs. Commissioner of Income-Tax, Andra Pradesh in 1990 (Volume-181) ITR page 400 and in case between K.S. Krishna Rao vs. Commissioner of Income-Tax, Andhara Pradesh reported in 1990 (181) ITR 408 for the purpose of Income Tax, the interest payable on enhanced compensation will be treated as spread-over and paid for the number of years for which the interest is required to be paid and the interest payable on such enhanced compensation will not be treated as income of the single year in which same is paid. 38. The Reference Court has also considered it appropriate, on the basis of available material concerned, not to grant any additional or higher rate of compensation towards, trees and construction etc. than what was allowed by LAO. We are not persuaded and inclined to take different view from that of the Reference Court. 38. The Reference Court has also considered it appropriate, on the basis of available material concerned, not to grant any additional or higher rate of compensation towards, trees and construction etc. than what was allowed by LAO. We are not persuaded and inclined to take different view from that of the Reference Court. Hence, the claimants will not be entitled for any higher or additional amount for compensation towards construction and/or trees etc., above the amount awarded by the LAO. 39. As mentioned earlier, while granting interim relief direction for disbursement of 35% of the deposited amount and investment of balance amount were passed, hence, the Reference Court is directed to disburse the amount to the claimants after adjusting the paid and deposited amounts, by Account Payee cheques, after due and proper verification of all relevant aspect including their identity etc. 40. It is necessary to mention that the cause list prepared by the Registry shows that respondent No. 5 in First Appeal No. 1583 of 2003, 1588 of 2003, 1618 of 2003 and 1621 of 2003 has/have expired. However, the learned Counsel appearing for the respondent-claimants has placed on record a note stating, inter alia, that though steps, pursuant to the death of certain respondent(s) concerned in the captioned appeals were taken, necessary actions by the office to correct the record does not appear to have been taken. It is further stated in the note that so far as the First Appeal No. 1583 of 2003 is concerned after the sad demise of the respondent Shri Jasmatbhai Bhikhabhai the list of his heirs was placed on record and the bailiff of the Court had taken said list while effecting service of First Appeals and subsequently the compensation at the rate of 35% has already been disbursed in favour of the heirs, to the knowledge of the appellant. It is also stated in the note that vakalatnama on behalf of the heirs have also been filed. Hence, necessary formalities, after due verification, shall be carried out by the Registry. Similarly with regard to First Appeal No. 1588 of 2003 it is stated that “the claimants in this First Appeal are heirs of deceased Kurjibhai Jerambhai and one Smt. Santokben Jerambhai. Hence, necessary formalities, after due verification, shall be carried out by the Registry. Similarly with regard to First Appeal No. 1588 of 2003 it is stated that “the claimants in this First Appeal are heirs of deceased Kurjibhai Jerambhai and one Smt. Santokben Jerambhai. The said Santokben has expired long before the award and the reference, but as her name stood in the Revenue record, no action is necessary except deleting the name of Smt. Santokben from the appeal memo wrongly joined by the appellant State”. So far as First Appeal No. 1618 of 2003 is concerned, it is stated on behalf of the concerned respondent, in the said note that “There are six claimants in this First Appeal and one of the claimants Popatbhai Laxmanbhai has expired after the judgment of the Reference Court. The list of his heirs are already given to the bailiff when he had come to serve notice on the deceased Popatbhai. However, no action is required to be taken as he was one of the joint claimants in a single reference No. 523 of 1991. Further, the compensation as deposited is disbursed to his heirs without any objection”. In connection with the First Appeal No. 1621 of 2003 it has been stated on behalf of the concerned respondent, in the said note that - The First Appeal is filed against the heirs of deceased Virabhai Ukabhai and one of the heirs Smt. Sonabai Virabhai has expired. The rest of the five heirs were already on record and, therefore, no action is required to be taken for joining her heirs as her other heirs are already on the record.