1 F.A.No.96 of 2002 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 96 OF 2002 Shri Jaidev Datta Pangam, (since deceased) through his Legal Representative : Shri Devidas Jaidev Pangam, resident of A6, `Rukmini Mansion' Khorlim, Mapusa, Bardez – Goa. ........ Appellant. V/s. (1) Special Land Acquisition Officer, Irrigation Department, Mapusa-Goa. (2) The Executive Engineer, Works Division VI, Irrigation Department, Bicholim – Goa. ....... Respondents. Mr. V. A. Lawande, Advocate for the appellant. Mr. M. Salkar, Addl. Govt. Advocate for the respondents. CORAM :- S.B. DESHMUKH, J. Date :- 20th/21st January, 2011. ORAL JUDGMENT: Heard learned Counsel for the respective parties. 2 F.A.No.96 of 2002 2. Gamut of events, led to filing of this first appeal by the appellant, may be listed herein below : (A) The Executive Engineer, Works Division VI, Irrigation Department, Bicholim – Goa initiated a proposal for the purpose of acquisition of the land permanently for the construction of Right Bank Main Canal (second stretch) at Siroli and Gonthelim-Sattari Taluka. (B) Notifications under Sections 4 and 6 of the Land Acquisition Act, 1894 (hereinafter, referred to as “the said Act”) were published in the Government Gazettes. Section 4(1) of the said Act Notification was published in the Government Gazette on 6th June, 1983. Section 6 Notification of the said Act was published on October 20, 1983. (C) Notified area for the acquisition under Section 4 was to the tune of 69075 sq. metres. (D) The acquiring body/department, as per its requirement and in consultation with the Land Survey Department, reduced the area to the tune of 59,976 sq. metres. (E) The appellant (hereinafter referred to as “the applicant” 3 F.A.No.96 of 2002 for the convenience sake) made a representation on 13.12.1983 to the Special Land Acquisition Officer (for short `SLAO') pertaining to the actual measurement of the plot/land surveyed under survey No.25/10. According to him, it was to the tune of 850 sq. metres. At the instance of the applicant and at his grievance, the plot i.e. survey No.25/10 was remeasured and it was found to the tune of 500 sq. metres. A copy of the Award of the SLAO which is on record at Exhibit 42/C shows that the land which was surveyed under Survey Nos.25/8 and 25/10 of Gonthelim village was recorded in the revenue record in the name of the applicant Shri Jaidev Datta Pangum as holder thereof. The SLAO has, therefore, recorded that the applicant Jaidev was entitled for full amount of compensation to be awarded for the compulsory acquisition of these two lands or the plots of land. (F) On 14th December, 1983, hearing was scheduled by the SLAO. The applicant, the holder of the plots surveyed under Survey Nos. 25/8 and 25/10, claimed compensation at the rate of Rs.40/- per sq. metre. (G) The applicant during the hearing on 14.12.1983, made available copies of the sale deed dated 21st August, 1981, 4 F.A.No.96 of 2002 registered in the Office of Sub-Registrar at Sattari under No.91 of Book I, Vol. VIII dated 4.9.1981 and sale deed dated 18.12.1982 registered under No.178 of Book No.1, Vol. XI dated 1.12.1983, as also Sale Deed dated 8.6.1983 registered under Book No.1, Volume XII dated 23.7.1983. (H) The Award shows that an amount of Rs.26,073-44 was awarded to the land surveyed under survey No.25/8 admeasuring 4200 sq. metres. In other words, the rate per square metre awarded by the SLAO is Rs.2.50 per sq. metre for the land survey No.25/8 which is characterized as bharad land. It is seen that the other plot of the applicant land survey No.25/10 (paddy land) is to the tune of 550 sq. metres and an amount of Rs.2022-54 is awarded towards compensation. The rate per square metre comes to Rs.3/-. This award of the SLAO under Section 11 of the said Act was passed on May 6, 1982 in case No.SLAO/AIP-25. Details of the acquisition of lands owned by the present applicant have been taken from the original award which is on record at Exhibit 42/C and with the assistance of the learned Counsel present before the Court on behalf of the parties. 5 F.A.No.96 of 2002 3. The applicant being aggrieved and dissatisfied with the award passed by the SLAO under Section 11, indisputably made an application under Section 18 of the said Act for enhancement of the amount of compensation to the District Court, Panaji. 4. The application made by the applicant was registered as Land Acquisition Case No.184/1990, and was made over to the learned Addl. District Judge, Mapusa, who heard and disposed of the same by Judgment and Award delivered on 27.12.1999. The learned Addl. District Judge, after hearing the Counsel for the parties and considering the material on record, maintained the compensation awarded by the SLAO. In other words, the application for enhancement filed by the applicant was rejected by the learned Addl. District Judge in Land Acquisition Case No.184/1990 by his Judgment and Award dated 27.12.1999. The applicant being aggrieved and dissatisfied with the Judgment and Award passed by the learned Addl. District Judge in Land Acquisition Case No.184/90 preferred First Appeal No.54/2000 before this Court. 6 F.A.No.96 of 2002 5. This Court, (Coram : D.G. Deshpande, J.), after hearing the learned Counsel for the parties, allowed the appeal on 7th March, 2001. The Judgment and Award passed by the learned Addl. District Judge in Land Acquisition Case No.184/90 was quashed and set aside, and the matter was remanded to the trial Court to hear the oral submissions of the parties on the basis of the evidence and the documents which were already on record. This Court further directed the learned Addl. District Judge to accept written submissions in addition and decide the case on or before 30th April, 2001. 6. With the assistance of the Counsel for the parties, I have considered the observations made by this Court in paragraph 3 of the Judgment. In paragraph 3, this Court arrived at a conclusion that it is a case of non-application of mind on the part of the reference Court. Misreading of the evidence is also observed in some paragraphs. This Court, therefore, found the fit case of non-application of mind by the trial Court to the facts and circumstances brought on record. As noticed above, the remand was directed. 7 F.A.No.96 of 2002 7. After remand, Land Acquisition Case No.184/90 was considered by the learned Addl. District Judge. The learned Addl. District Judge, after hearing the Counsel for the parties and considering the material which was brought on record, maintained the award of the SLAO, meaning thereby the learned Addl. District Judge on second occasion also rejected the application for enhancement of compensation by the impugned Judgment and Award delivered on 23th April, 2001. 8. The applicant being aggrieved and dissatisfied with the Judgment and Award, after remand, passed by the learned Addl. District Judge, Mapusa on 23rd April, 2001, preferred the present First Appeal in this Court under Section 96 of the Code of Civil Procedure, read with Section 54 of the said Act. The appeal is registered as First Appeal No.96/2002. 9. I have heard learned Counsel appearing for the respective parties. Counsel appearing for the applicant points out material placed on record on behalf of the applicant. Relying upon the Judgment of the Addl. District Judge in case No.184/90 dated 23.4.2001, after remand, 8 F.A.No.96 of 2002 according to him, the learned Addl. District Judge ought to have accepted the claim of the present applicant for enhancement. The claim of the present applicant for enhancement, as was submitted before this Court, is a matter of record. The submissions on behalf of the applicant while hearing First Appeal No.54/2000 form part of paragraph 4 of the Judgment of this Court. Amount of compensation at Rs.2.50 per sq. metre and Rs.3 per sq. metre for two types of lands i.e. bharad land survey No.25/8 and the paddy land survey no.25/10 acquired was noticed by this Court. This Court had observed that the applicant who is seeking market value for land survey No.25/8 & 25/10 at Rs.40/- per sq. metre, however, has restricted his claim to Rs.15/-per sq. metre on the basis of a sale deed which is duly proved and brought on record. Learned Counsel Mr. Lawande maintains his submission as of today even in this first appeal filed on second occasion after remand. 10. After hearing the Counsel for the parties, considering the application under Section 18 of the said Act filed by the applicant, written submissions placed on record, and the oral and documentary evidence made available by the parties, in my view, the following 9 F.A.No.96 of 2002 points arise for my consideration : (1)Whether the applicant has proved grant of inadequate amount of compensation for acquisition of his “suit plots” ? (2)Whether the Judgment and Award passed by the Addl. District Judge, Mapusa, after remand, is sustainable ? (3) Whether the applicant is entitled for statutory benefits ? (4)What order and award ? R E A S O N S 11. Acquisition of lands is a subject-matter of all concerned. Ordinarily, acquisition of lands is being initiated and completed for the public purpose. Necessity of lands for development of the society and public purpose cannot be denied. Right of a citizen not to be deprived of property without authority of law is no longer a fundamental right. Article 300A of the Constitution of India is important. It is provided that a person not to be deprived of property save by authority of law. By this time, right to property is recognized and accepted to be human right though it is not a fundamental right. (AIR 2003 SC 3240). In case of acquisition of immovable property, restricted remedy is available to the citizen/holder of the property. A notification under 10 F.A.No.96 of 2002 Section 6 of the said Act duly published and notified, cannot be challenged by any proceedings before ordinary civil court. In a given case, a writ petition under Article 226 or 32 of the Constitution is the remedy available to the holder/citizen and for that purpose one has to invoke jurisdiction of the High Court or the Supreme Court. It is in this fact situation, the acquisition of immovable property has termed to be of compulsive nature in relation to the holder of the property and/or having interest in the immovable property. It is on this backdrop, an award for compensation while acquiring the immovable property for public purpose gains its importance and requires to be considered by the appropriate Court, at appropriate stage. Grant of compensation from this view point is considered by central legislation and the said Act has been amended from time to time. Keeping in mind this doctrine, the court or the authority concern needs to resolve the controversy brought before it. (see Mahesh Dattatray Thirthkar vs. State of Maharashtra, 2009 AIR SCW 2962) 12. In the case on hand, as noticed in the foregoing paragraphs, the matter was remanded by this Court and even after 11 F.A.No.96 of 2002 remand the application filed by the applicant has been rejected by the learned reference Court. With the assistance of the Counsel appearing for the parties, I have seen the Judgment of the learned Addl. District Judge dated 23.4.2001. Learned reference Court accepted the sale deed at Exhibit AW.1/B and the evidence of AW.2 as genuine sale transaction. Such a finding of the learned reference Court is in paragraph 7 of the Judgment. The deed of sale is dated 17th August, 1977. This sale is 6 years prior to the date of Section 4 notification. It appears that the learned reference Court has considered the alleged admission given in the cross examination by AW.2 that the distance between the acquired land and the land subject-matter of the sale deed dated 17th August, 1977 was about 2 and half kilometres. Such a finding of the learned reference Court is in paragraph 7 of its Judgment and Award. With the assistance of the Counsel present before the Court, I have perused the evidence of AW.2 Samsher Khan. It appears that this witness had purchased a plot of land admeasuring 500 sq. metres, at the rate of Rs.15/- (Rupees fifteen only) per sq. metre. The said land is situated at village Kerim. Vendor of the land seems to be one Vaman Tukaram Gauns and Dwarka Gauns. In his evidence 12 F.A.No.96 of 2002 AW.2 says that the land of the applicant i.e. the applicant in the case in hand was about 300 to 400 metres away from the land in the sale instance. Nature of the land i.e. land subject-matter of the sale instance, AW.2 Samsher seems to be a paddy land. He also makes a statement in his evidence that the acquired land was similar to his land. From his evidence i.e. from his examination-in-chief, it appears that there was a small hut in the land which is subject-matter of the sale deed and was utilized for keeping agricultural apparatus or implements. Sale Deed Exhibit AW.1/B is duly established in accordance with the rules of evidence, apart from Section 51A of the said Act. With the assistance of the Counsel, I have seen the cross examination of this witness. In cross examination, the witness AW.2 fairly admits that his land i.e. subject-matter of sale instance though was a paddy filed, however, it is not mentioned accordingly. He, however, claims that he had purchased the land for the purpose of cultivating potatoes. In cross examination he states that the land in the sale instance was about 150 metres away from the road leading from Sanquelim to Belgaum. He further states in the cross examination that the road leading from Kerim to Shiroli is about 2 and half kilometres 13 F.A.No.96 of 2002 away from his land. It appears that this part of the evidence was considered by the learned reference Court against the applicant. It is important to notice the statement of this witness which reads : “I now say that the said road is about 50 metres away from my land”. While appreciating the evidence, oral or documentary, it is settled principle that the assessor/arbitrator/court has to consider the evidence as a whole in its totality. A stray sentence either in the examination-in- chief or in the cross examination cannot be picked up and utilized for arriving at a conclusion in relation to the evidence of the said witness when the issue being considered by the Court. As noticed by me, learned reference Court did not consider the said sale instance in favour of the applicant, precisely for the reason, the location of the land subject-matter of the sale instance i.e. Exhibit AW.1/B as around 2 and half kilometres away from the land owned by the witness AW.2. In my view, appreciation of the evidence of AW.2 and rejection of the sale instance by the reference Court and/or recording the finding based on his alleged admission in the cross examination of AW.2 Samesher Khan, is illegal. 14 F.A.No.96 of 2002 13. Another finding recorded by the learned Addl. District Judge for rejecting the evidence in the form of Exhibit AW.1/B sale instance precisely 6 years prior to Section 4 notification, is the nature of the land and land mentioned in the sale instance. So far as acquired land is concerned, it may be recalled that two plots have been acquired, one survey No.25/8 which is called as Bharad land admeasuring 4200 sq. metes and the another plot survey no.25/10 called as paddy land around 550 sq. metres area. So far as survey No.25/10 is concerned, it has been recorded in the revenue record as paddy land and there is no dispute amongst the parties. However, so far as land survey No.25/8 is concerned, the type of land is mentioned as bharad land. The finding of the learned reference Court in this respect in paragraph 7 of the Judgment and Award dated 23.4.2001 reads : “The land in the sale instance is admittedly a paddy field whereas the acquired land surveyed under No.25/8 is a Bharad land. Survey No.25/10 is however, a paddy field.”. So far as existence of house in the land mentioned in the sale instance is concerned, I have considered the evidence of AW.2 as a whole. Nothing is there on record, especially elicited in the cross examination in relation to the nature of construction and/or value of the 15 F.A.No.96 of 2002 said house. AW.2 Samsher refers to the said house as a hut in the examination-in-chief. I have considered his statement in the cross examination that the said structure/hut or house is assessed to some house tax by the local authority. In my opinion, only because of these two grounds i.e. misreading of the distance of land mentioned in the sale instance and the suit land allegedly 2.5 kms. and the existence of some structure which is not used for human dwelling, the sale instance Exhibit AW.1/B cannot be said to be incomparable sale instance. 14. With the assistance of the Counsel appearing for the parties, I have seen the sale deed at Exhibit AW.1/B which is on record. This property is i.e. the plot of land is called “PLOT OF MATHA” surveyed under Survey No.57/3 (area of 300 sq. metres). It is also mentioned in the sale deed Exh. AW.1/B that there exists a house in it bearing house No.378. This sale deed dated 17th August, 1977 is duly established in evidence of AW.2. Rate of the property conveyed under this sale deed seems to be Rs.15/- per sq. metre. 15. Apart from the findings which I have recorded in the 16 F.A.No.96 of 2002 foregoing paragraphs, I have noticed an Award of the learned Addl. District Judge, Panaji in Land Acquisition Case No. 20/86. This award seems to have been delivered by the leaned Addl. District Judge, Panaji on 5th June, 1989. This Award makes a reference to the land acquired which was subject-matter of the said case. In paragraph 2 the purpose of acquisition is given which is the same i.e. the Right Bank Main Canal of Anjunem Irrigation Project. It was of the year 1983. The land acquired seems to be from village Ravan. Survey numbers of the property acquired therein have been mentioned in paragraph 2. The Land Acquisition Officer, in that case, had awarded compensation at the rate of Rs.2/- per sq. metre in respect of bharad land and Rs.4.50 per sq. metre for the paddy land. There the learned Addl. District Judge, after considering the evidence on record, arrived at a conclusion that the market price of the land subject-matter of that award/case was Rs.15/- per sq. metre as on 8.3.1984. In that case also, on behalf of the State similar were the objections raised. They are dealt with by the reference Court in that case. The type of land acquired was bharad and a contention was raised on behalf of the State that it is located at the interior place, about 7 kms. from Sanquelim market and 17 F.A.No.96 of 2002 commercial area. 16. There is no dispute amongst the Counsel appearing for the parties herein that LAC No.20/1986 Award of the learned reference Court was on record and reliance was placed by the present applicant. After remand, the learned Addl. District Judge has considered the contents of this Award. The learned Addl. District Judge was of the view that the land subject-matter of LAC 20/1986 was acquired in the year 1984, much after acquisition of the land in the case in hand. Findings of the learned Addl. District Judge in LAC 20/86 were considered and commented upon by the present reference Court which delivered the Judgment and award in Land Acquisition Case No.184/1990. It is specifically observed that the material before the said Court (learned Addl. District Judge who decided LAC 20/1986) was of two sale deeds on the basis of which a comparison could be drawn in the price of the land index. In the case on hand, the learned Addl. District Judge recorded a finding that the land which is subject- matter of the present case refers to only one sale deed and, therefore, the Judgment and Award delivered by the Addl. District Judge 18 F.A.No.96 of 2002 (coordinate Court) is distinguishable. The learned reference Court, in the case on hand, further held that even if the evidence of DW.1 i.e. on behalf of the State if discarded, it cannot be said that the applicant has proved his case for enhancement. With this finding, the Judgment in LAC 20/1986 has been refused to be relied upon by the present reference Court. 17. Production and Effect of Evidence, Chapter VII of the Evidence Act, 1872 is the significant. Section 101 of the Evidence Act, 1872 states that whoever desires any Court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 102 of the Evidence Act states that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. In the facts of the present case, so far as burden of proof in relation to true market value of the subject-matter/acquired land, whether lies on the applicant or the 19 F.A.No.96 of 2002 respondent ? Ordinarily in a case of acquisition, if an application is filed for enhancement of the compensation awarded, it is a person who is claiming enhancement in the market price has to adduce evidence in relation to the market price of a particular property or the acquired land. Thus, it can be said that the initial burden though it is on the applicant, in such cases, it is not the initial and final burden of proof permanently on the applicant. It is apropos to quote paragraph 29 of the Judgment in the case of Mahesh Dattatray Thirthkar vs. State of Maharashtra, reported in 2009 AIR SCW 2962. Paragraph 29 reads : “ 29. Given that the appellant has been able to show, by the testimony and valuation report of the expert valuer, that the award of compensation passed by the Land Acquisition Officer was inadequate, the onus now shifts on the Respondent to adduce sufficient evidence to sustain the award, as was held clearly in the case of Special Land Acquisition Officer v. Sidappa Omanna Tumari (1995 Supp (2) SCC 168). We firmly feel that the State-Respondent has completely failed to discharge this burden. The Respondent has been unable to produce any evidence at all to support its claim of sufficiency of the award and the High Court Judgment, leave alone the question of having adduced sufficient evidence.” I have considered in the case on hand, the evidence of Shri Rangaraju Manjunath, Assistant Engineer, Irrigation Department, examined on 20 F.A.No.96 of 2002 behalf of the respondent. In my opinion, this evidence led on behalf of the respondent is not sufficient to sustain the award passed by the SLAO. In the case on hand, the applicant apart from his evidence has placed on record documentary evidence in the form of a copy of the sale deed Exhibit AW.1/B dated 17.8.1977 and has also adduced evidence of one of the parties to the document i.e. AW.2 Samesher Khan. Apart from the evidence that I have observed in the foregoing paragraphs, a copy of the Award delivered by the reference Court i.e. the Addl. District Judge, Panaji in LAC 20/86 is placed on record. 18. Evidentiary value of the earlier Award was considered by the Hon'ble Supreme Court in the matter of Bhagat Singh and others vs. Union of India and another, reported in (2009) 9 SCC 427. There the Court was considering Section 23 of the said Act determining the