IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.06.2010 CORAM : THE HON'BLE MR.JUSTICE P.R.SHIVAKUMAR A.S.No.477 of 2002 The Special Tahsildar, (Adi Dravidar Welfare), Vellore ... Appellant/ Referring Officer Vs. 1.Renganayagi 2.P.Sudararaj 3.P.Vijayakumar @ Srikanth 4.P.Saina @ Anand ... Respondents/ Claimants Appeal filed under Section 54 of the Land Acquisition Act, 1894 against the award passed in LAOP No.1/99 Dt.14.08.2001 by the learned Subordinate Judge, Vellore. For Appellant : Mr.V.Ravi, Additional Govt. Pleader (AS) For Respondents: Mr.V.Raghavachari (for R1, R3 and R4) 2nd Respondent: NA JUDGMENT This appeal has been filed under Section 54 of the Land Acquisition Act, 1894 against the award of the learned Subordinate Judge, Vellore dated 14.08.2001 made in LAOP No.1/1999. 2. A total extent of 2.30 acres equivalent to 0.93.0 hectare comprised in survey Nos.22/5 and 22/6 in Veppankuppam village, Vellore Taluk, Vellore District was acquired by the government for a public purpose, to wit, for providing house sites to Adi Dravidas of Veppankuppam village. The notification under Section 4(1) of the Land Acquisition Act, 1894 was approved by the government in G.O.Ms.No.1123/Social Welfare Department Dated 20.04.1988 and was published in the Tamil Nadu government gazette on 25.05.1988. After necessary enquiry under section 5(A) and a declaration under Section 6 of the Land Acquisition Act, an award https://hcservices.ecourts.gov.in/hcservices/ was passed by the Land Acquisition Officer, namely Special Tahsildar (Adi Dravidar Welfare), Vellore in award No.12/1991 dated 17.12.1990 awarding a sum of Rs.27,773/- as total amount of compensation for the above said extent of land acquired for the above said purpose. The respondents herein were the owners of 0.41.0 hectares, equivalent to 1.01 acres out of 0.42.0 hectares of land comprised in survey No.22/6 acquired in the above said acquisition proceedings. They were awarded a total sum of Rs.3,049 x 4 = Rs.12,196/- as compensation for the above said extent of 1.01 acres of land acquired from them. Since they felt that the compensation awarded by the Land Acquisition Officer was insufficient, they received the amount under protest with a request to the Land Acquisition Officer to make a reference under Section 18 of the Land Acquisition Act to the court for fixing a reasonable amount as compensation. Hence a reference was made to the sub-court, Vellore under Section 18 of the Land Acquisition Act and the same was taken on file as LAOP No.1/1999. After affording opportunity to the claimants and the Referring officer to put in their pleadings in writing, the learned Subordinate Judge conducted a trial, in which, one witness was examined as C.W.1 and two documents were marked as Exs.A1 and A2 on the side of the claimants and one witness was examined as R.W.1 and two documents were marked as Exs.B1 and B2 on the side of the Referring Officer/Special Tahsildar (Adi Dravidar Welfare). After considering the pleadings and the evidence adduced on either side, the learned Subordinate Judge fixed the market value of the acquired land at the rate of Rs.974/- per cent, allowed 30% solatium on the market value and an additional market value @ 12% per annum from the date of 4(1) notification till the date of award and also interest on the enhanced amount of compensation @ 9% per annum from the date on which possession was taken by the government for a period of one year and for the subsequent period @ 15% per annum. 3. Challenging the correctness of the said award, the Referring Officer/Land Acquisition Officer/Special Tahsildar (Adi Dravida Welfare) has come forward with the present appeal on various grounds set out in the memorandum of appeal. 4. The point that arises for consideration in this appeal is "Whether the amount fixed by the court below as compensation and consequently the amount fixed as enhanced compensation over and above the amount awarded by the Land Acquisition Officer is excessive requiring downward revision?" 5. The arguments advanced by Mr.V.Ravi, learned AdditionalGovernment Pleader (AS) appearing for the appellant and by Mr.V.Raghavachari, learned counsel representing the respondents 1, 3 and 4 were heard. The entire materials available on record were also perused. https://hcservices.ecourts.gov.in/hcservices/ 6. Not satisfied with the amount offered by the government as compensation for the land acquired from them, the respondents herein/claimants had caused the Land Acquisition Officer to make a reference to the Sub-court under Section 18 of the Land Acquisition Act, 1894 for fixing a reasonable amount as compensation. The learned Subordinate Judge, Vellore, after considering the evidence adduced on both sides, relying on an entry found at Sl.No.29 in the sales statistics collected by the Land Acquisition Officer and marked as Ex.B1, fixed the market value of the acquired land at Rs.97,400/- per acre (Rs.974/- per cent). 7. It is the contention of the learned AdditionalGovernment Pleader (AS) that the fixation of the market value based on an entry found in the sales statistics collected by the Land Acquisition Officer without an authenticated copy of the sale deed concerned in the entry being produced and evidence in proof of the transaction being adduced, is against the legal principle applicable in case of land acquisition cases and that hence the award of the learned Subordinate Judge fixing the market value of the acquired land at Rs.974/- per cent could not be sustained in law. 8. On the other hand, the learned counsel for the respondents/claimants would contend that the learned Subordinate Judge, in the absence of reliable evidence adduced on the side of the Referring Officer, could have fixed the market value @ Rs.2,166.66P per cent based on Ex.A2-Sale deed; that the learned Subordinate Judge, however fixed only a lesser rate as the market value of the acquired land and that the amount awarded by the learned Subordinate Judge as compensation, at no stretch of imagination, could be held excessive or exorbitant. It is the further contention of the learned counsel for the respondents/claimants that the old survey number of the acquired land was 50/2; that the said land had already been divided into house sites and a plot extending three cents was sold under Ex.A2- sale deed on 07.11.1986 for a sum of Rs.6,500/- and that hence the market value of the acquired land should have been fixed at the above said rate. 9. It is true that no document, including a certified copy of the sale deed relied on by the Land Acquisition Officer as the sample sale for fixing the market value of the acquired land, has been produced on the side of the appellant herein/Referring officer. The two documents produced by the appellant herein/Referring Officer are the statement of sales statistics collected by the Referring officer and the topo sketch marked as Exs.B1 and B2 respectively. The mere fact that an entry found in the statement of sales statistics collected by the Land Acquisition Officer regarding a sale on a particular date in respect of a particular survey number at a particular rate, shall not be enough to hold that such a sale, in fact, took place and https://hcservices.ecourts.gov.in/hcservices/ that such a sale deed was a genuine one reflecting the correct market value of the land conveyed therein. If at all the claimants want to rely on any of the sales, which the Land Acquisition Officer chose to reject as not reflecting the correct market value, then it is for the claimants to produce a legally admissible copy of such sale deed and prove by adducing proper evidence that the said sale was genuine and the rate reflected therein represented the correct market value. In the absence of any such evidence, if there is any admission on the part of the appellant/Land Acquisition Officer regarding genuineness of a transaction found in a particular entry included in the statement of sales statistics, then the same shall become an admissible piece of evidence as a fact admitted. 10. A reading of the judgment of the court below shows that the learned subordinate judge proceeded on the assumption that the LAOP instituted on a reference under Section 18 of the Land Acquisition Act was an appeal against the award passed by the Land Acquisition Officer. The entire discussion is based on such an assumption. Therefore, the very approach made by learned subordinate judge seems to be erroneous. This position has been made clear in Special Deputy Collector vs. Kurra Sambasiva Rao reported in (1997) 6 SCC 41, wherein the Hon'ble Supreme Court has held that the burden of proof of the contention that the land is capable of fetching higher market value shall always lie on the claimants. In Uttar Pradesh Jal Nigam, Lucknow vs. Kalra Properties Private Limited reported in (1996) 3 SCC 124 also the Hon'ble Supreme Court has held that the market value of the acquired land shall be determined only on the basis of the evidence adduced by the claimant and the rebuttal evidence thereof. In Union of India vs. Special Land Acquisition Officer reported in (1996) 6 SCC 454, the Hon'ble Supreme Court has held that the award of the Collector is only an offer made on behalf of the State. Similarly in Manipur Tea Company Private Limited vs. Collector of Hailakandi reported in (1997) 9 SCC 673, the Hon'ble Supreme Court has held that the burden of proof of market value is with the claimants who must produce evidence to prove the market value and that the burden does not shift over to the government. 11. A reference under Section 18 of the Land Acquisition Act should not be construed to be an appeal against the award of the Land Acquisition Officer and the court to which such reference is made cannot assume the role of appellate court to decide the correctness or otherwise of the award passed by the Land Acquisition Officer. In a reference under Section 18 of the Land Acquisition Act, 1894, the claimant shall occupy the position of the plaintiff and the Referring Officer shall occupy the position of defendant. The claimants in this case, who occupy the position of plaintiffs, have to win or lose the case according to the weight of evidence adduced on their side and not on the basis of the weakness of the defence case of the Referring officer or absence of any evidence adduced on the side of the Referring officer. https://hcservices.ecourts.gov.in/hcservices/ 12. In this case, the second respondent/second claimant has been examined as CW-1, the sole witness examined on the side of the respondents herein/claimants. Ex.A1 is nothing but a power of attorney executed by the other claimants in favour of the second claimant for conducting the case on their behalf also. So, Ex.A1 shall not lend any help to determine the market value of the acquired land. The only document produced by the respondents herein/claimants is Ex.A2. The admissibility of Ex.A2 has been questioned by the appellant herein/Referring officer at the time of marking the document itself. It was marked subject to objection. It is not the original sale deed or a certified copy of the sale deed. Ex.A2 is projected to be an attested xerox copy of a sale deed executed by CW-1 on 07.11.1986 in favour of one P.G.Paranthaman in respect of three cents of land in old survey No.50/2B for a sum of Rs.6,500/-. Of course it is true that CW-1 has spoken about the said sale transaction. However, there is a slight variation in the sale consideration quoted in Ex.A2 and the sale consideration stated by CW-1. In Ex.A1, the sale consideration was stated to be Rs.6,500/- whereas CW-1 has stated that the said land was sold by him for a sum of Rs.6,600/- at the rate of Rs.2,200/- per cent. As pointed out supra, admissibility of Ex.A2 was not concealed and on the other hand objection for marking the same as a document was raised on behalf of the appellant herein/Referring officer. 13. As per section 61 of the Evidence Act, 1872, contents of documents may be proved either by primary or secondary evidence. As per Section 62 of the Evidence Act, 1872, primary evidence means the document itself produced for the inspection of the court with an explanation that when a document is executed in several parts, each part is primary evidence of such document and that where a number of documents are all made by one uniform process, each one shall be a primary evidence of the contents of the rest. But, where such copies are of a common original, they are not primary evidence of the contents of the original. Section 64 says that documents must be proved by primary evidence except in cases wherein secondary evidence is permitted. Cases in which secondary evidence relating to documents is permitted are listed out in Section 65. Section 65(f) permits production of certified copies of the original documents if a certified copy is permitted by the Evidence Act or by any other law in force in India. However, in case of such documents of which a certified copy is permitted by the Evidence Act or by any other law in force in India, then a certified copy of the document alone shall be admissible as secondary evidence and no other kind of secondary evidence shall be admissible. For the purpose of better appreciation, the entire Section 65 is reproduced here under highlighting the relevant portions:- 65. Cases in which secondary evidence relating to documents may be given. https://hcservices.ecourts.gov.in/hcservices/ Secondary evidence may be given of the existence, condition, or contents of a document in the following cases. (a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, And when, after the notice mentioned in section 66, such person does not produce it; (b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) When the original is of such a nature as not to be easily movable; (e) When the original is a public document with the meaning of section 74; (f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence; (g) When the original consists of numerous accounts or other documents which cannot conveniently be examined in court and the fact to be proved is the general result of the whole collection. In case (a), (c) and (d), any secondary evidence of the contents of the documents is admissible. In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. https://hcservices.ecourts.gov.in/hcservices/ In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. Therefore, it is quite obvious that Ex.A2 is not admissible since it is neither original nor a certified copy. There are also contradictions between the evidence of CW-1 and the contents of Ex.A2. In Ex.A2, the land sold is described to be a land used for floriculture ($hjp ky;yp g{ bro itf;Fk; cgnahf epyk; MFk;). Quite contrary to the above said recital, CW-1 would state that the entire land in old survey No.50/2B was divided into house sites and three cents was sold under the said deed as a house site. It has been pointed out supra that the evidence of C.W.1 regarding the rate at which the land was sold is contrary to the contents of Ex.A2. Therefore, the learned subordinate judge cannot be found fault with for not relying on Ex.A2 as a data sale reflecting the market value of the acquired land. A reference to a document dated 07.11.1986 with the particulars found in Ex.A2 is not found in the sales statistics collected by the Land Acquisition Officer. Therefore, the evidence of CW-1 that the land should have been valued as house site or a property having the potentiality to be developed into house sites becomes unreliable. In the said circumstances, we have to see whether there is any admission on the part of the appellant herein/Referring Officer. 14. An assistant in the office of the Referring Officer has been examined as RW-1, the sole witness examined on the side of the appellant herein/Referring officer. During cross- examination, RW-1 has admitted the amenities and the situational advantages of the acquired land. It has been admitted that the acquired land is situated next to the Odugathur-Vellore Road and that important establishments like police station and higher secondary schools are situated near the acquired land. He has also admitted during cross-examination that an extent of 77 cents of land in survey No.44 had been sold for a sum of Rs.75,690/- under a sale deed registered as document No.514 of 1987. It is also his clear admission that survey No.44 is the land adjoining the acquired land and only a ridge separates the acquired land and survey No.44. It is also his admission that the quality of the acquired land and survey No.44 are same as per the revenue records. It is also his clear admission that the Land Acquisition Officer has erroneously observed that the land sold under the sale deed registered as document No.514/1987 was far away from the acquired land and that the Land Acquisition Officer committed a mistake in not valuing the land in accordance with the market value of survey No.44. When such is the evidence adduced by RW-1, the appellant herein/Referring officer should have examined other witness to show that the said document was not a genuine one reflecting the correct market value or that what was admitted by RW-1 was, in fact, not correct. RW-1 has also admitted that the https://hcservices.ecourts.gov.in/hcservices/ said land was sold at the rate of Rs.974/- per cent. Strictly speaking if the appellant herein/respondent was of the view that the above said admission made by RW-1 was not correct, he could have been cross-examined with the permission of the court and further evidence should have been adduced. But no such thing has been done on the side of the appellant herein/Referring officer. Therefore, though the evidence adduced by the claimants through CW-1 and Exs.A1 and A2 would not be sufficient to prove the market value of the acquired land as on the date of 4(1) notification. There is a clear admission on the part of the appellant herein/respondent through RW-1, the sole witness examined on the side of the appellant herein/Referring officer. Admissions are best evidence though not conclusive proof. The party against whom such admissions are sought to be used as evidence, can have a right to lead evidence to disprove the fact admitted by the admission. In this case, there is no such evidence to disprove the fact admitted by RW-1. Therefore, this court finds no defect or infirmity in the award of the court below in fixing the market value of the acquired land as on the date of 4(1) notification at Rs.974/- per cent. The court below has also correctly applied the provision regarding solatium, additional market value and interest on the excess amount of compensation. Though the approach made by the learned subordinate judge may not be proper, the decision arrived at by the learned subordinate judge cannot be termed either infirm or defective. There is no scope, whatsoever, to interfere with the award of the court below. There is no merit in the appeal and the same deserves to be dismissed. 16. In the result, the appeal is dismissed. However, there shall be no order as to cost. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. asr To The Subordinate Judge, Vellore. 1 cc to Mr.V. Raghavachari, Advocate, Sr. 43293 1 cc to Spl. Government Pleader, SR. 44089 A.S.No.477 of 2002 GV (CO) kk 5/7 https://hcservices.ecourts.gov.in/hcservices/