IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEALS No 2478 to 2493 of 2004 with FIRST APPEALS No 2494 to 2502, 2562 to 2566 of 2004 with FIRST APPEALS No 2433 to 2437 of 2004 with FIRST APPEALS No 2431 and 2432 of 2004 with CIVIL APPLICATIONS No 8219 to 8234,8237, 8104, 8106, 8109 to 8113 and 8537 to 8541 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE M.S.SHAH Sd/- and HON'BLE MR.JUSTICE D.H.WAGHELA Sd/- ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? 1 & 2 YES; 3 to 5 NO -------------------------------------------------------------- INDIAN OIL CORPORATON LIMITED Versus DHAYABHAI AHSHABHAI PATEL & OTHERS -------------------------------------------------------------- Appearance: 1. F.A.Nos.2478-2487, 2494-2502, 2433-2437 of 2004 MR MANISH R BHATT for Appellant MR KM PARIKH for Respondent No. 1 MR ARUN D OZA GOVERNMENT PLEADER for Resp. No. 2 2. F.A.Nos.2488-2493, 2562-2566, 2431-2432 of 2004 MR MANISH R BHATT for Appellant MR KM PARIKH for Respondent No.1 MR AY KOGJE AGP for Respondent No.2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE M.S.SHAH and HON'BLE MR.JUSTICE D.H.WAGHELA Date of decision: 09/02/2005 C.A.V. JUDGEMENT (Per : HON'BLE MR.JUSTICE D.H.WAGHELA) 1. Preface: These four groups of appeals arising from four common judgments in total 37 land reference cases having common features and the same appellant and having been argued together, are disposed by this common judgment. Since certain shocking facts were pointed out and withdrawal of even 50% of the amounts awarded by the Reference Court, which were deposited under the orders made in the civil applications for stay, was objected on behalf of the appellant and since the parties had jointly requested to take up these appeals for final hearing, the Records & Proceedings of the trial Court were called for and the learned counsel were heard at length for final disposal of the appeals. 2. First Appeals No.2478 to 2493 of 2004: The common judgment in 16 land reference cases under Section 18 of the Land Acquisition Act, 1894 ("the Act" for short) is under challenge in this group of appeals preferred under Section 96 of the Code of Civil Procedure, 1908 and Section 54 of the Act. The lands in question were acquired for the purpose of providing green belt near the refinery of the appellant and notification under Section 4 of the Act was published on 16.10.1989. The Land Acquisition Officer had awarded Rs.15/= per sq. mtr. in Compensation Case No.41 of 1987 by his Award dated 19.11.1992 and common evidence was recorded in the Court in Land Reference Case No.1155 of 1993. The lands in question of village Koyali, taluka Vadodara were claimed to be irrigated lands having great potentiality due to its proximity to developed industrial area. The claimants relied upon oral evidence of one of the claimants, namely, Dahyabhai Ashabhai Patel (Ex.15) and documentary evidence in the form of various awards at Exs. 16 to 26 in support of the claim of Rs.200/= per sq. mtr. The Special Land Acquisition Officer was examined at Ex.29 and the present appellant did not lead any evidence. Relying upon these pieces of evidence, the learned 3rd Joint Civil Judge (S.D.), Vadodara awarded compensation fixing the market price of the lands at Rs.150/= per sq. mtr. and awarded fabulous amounts as compensation for trees with the result that the total amount of compensation with interest and costs in this group of cases was increased by more than 10 times the amounts awarded by the Land Acquisition Officer. 3. Going through the Records & Proceedings of the lead Land Reference Case No.1155 of 1993, it was seen that claim for the acquired lands admeasuring nearly three hectares of Survey No.1470 was made at Rs.40/= per sq. ft. and Rs.1,05,000/= were claimed towards a small room and veranda for buffaloes and besides the statutory increases, without showing any claim for trees, Rs.1,80,000/= were claimed towards "limbi" as 1200/400 (sic). Thus, in all, as against the amount of Rs.3,24,775/= received under the award, an additional claim of Rs.93,09,506/= was made. By its written statement at Ex.5, the present appellant had, inter alia, stated that there was no crop except "Baval" and grass when the lands were acquired and that they were not used for any agricultural purpose. By an express order made below Ex.9, 16 reference cases from which these appeals arise were consolidated. The examination-in-chief of the only witness was produced at Ex.15 in the form of a printed affidavit in which heavy reliance was placed on the consent awards made in respect of lands of the adjoining village which were subsequently acquired. It was admitted by him in the cross-examination that no evidence of quality or yield of the crops was placed on record, that possession of the lands was taken in 1993, that no evidence as regards income from the crops or expenditure thereon was produced, that no evidence as regards income and expenditure was available, that it was true that at the time of giving up possession, no crop was lying in his lands, that no evidence as regards market price of the lands at the time of Section 4 or Section 6 notifications was produced and that the documentary evidence which was produced was related to the subsequent period. The printed examination-in-chief of this witness was dated 16.9.2002, it was produced on 20.2.2004 and cross-examination thereon was recorded on 21.4.2004. 3.1 The evidence on affidavit dated 27.4.2004 of the Land Acquisition Officer (Ex.29) was subjected to a very short cross-examination on the same day. On 28.4.2004, advocate of the appellant, Mr.B.M.Parikh, declared by pursis Ex.30 that the appellant herein did not propose to lead any oral or documentary evidence. By a pursis at Ex.31 dated 3.5.2004, the Government Pleader also declared closing of evidence for the Land Acquisition Officer. On 4.5.2004, written arguments for the claimants (Ex.32) were produced and taken on record. Another copy of the same written arguments for the claimants appears with the same endorsement "Recorded" at Ex.34. And, the written arguments for the present appellant (Ex.35) also appear to have been produced and recorded on the same date, i.e. 4.5.2004 and that is the last document before the impugned judgment. However, before that, there is another Ex.32 in the form of "List of documents" which also bears the endorsement "Recorded" with signature of the learned Judge as also the remark in the margin "Seen" with signature of the advocate for the appellant. Out of the four documents listed in the said list (Ex.32), three have been exhibited as Exs.33, 34 and 35, though the actual documents attached with the list bear Ex. Nos.34, 36, 33, 35 and 37. All these documents at Exs. 33 to 37 are photocopies supposed to be the statements of valuation of standing crops in the lands of several landholders of villages Bajwa, Koyali and Kharachiya and they are purported to have been produced in some other land reference cases. None of these documents are certified by any one as "true" or "correct" copies and nobody has deposed as to the authenticity or veracity of these tabular statements. The list at Ex.32 by which these documents were introduced is dated 5.5.2004 and the order below the list as far as it is readable conveys that the statements are regarding standing crop of the landholders and shows calculation of the amounts due on that count and since the applicants have admitted and produced them, they are permitted to be exhibited as Exs.33 to 36. The "Roznama" of Land Reference Case No.1155 of 1993, recording proceedings, shows the fact that the evidence of the parties was closed on 3.5.2004, written arguments at Ex.32 was submitted on 4.5.2004 and it was on 5.5.2004 that Exs.32 to 36 were taken on record, the arguments for the Land Acquisition Officer are shown to have been heard on 6.5.2004 and the judgment was declared on 7.5.2004. Serious irregularity without any explanation on record is not only that absolutely unauthenticated documentary evidence was introduced and exhibited in evidence after closure of evidence and submission of written arguments, but the learned advocate for the appellant was made aware of such introduction and no submission whatsoever appear to have been made in that regard by the advocate of the appellant even as compensation on that basis were to be awarded in millions of rupees on the next day. There are reasons to believe that the documentary evidence in the form of bland statements with the list were surreptitiously permitted to be included in evidence with complicity of the parties concerned with the result that ultimately huge amounts were awarded by the impugned judgment. 4. Turning to the impugned judgment and award, broadly speaking, the market price of the acquired lands is increased from Rs.15/= per sq. mtr. to Rs.150/= per sq. mtr. on the basis of consent awards in Compensation Case No.12 of 1994 (Ex.21) for the acquired lands of the adjoining village Kharachiya and consent award in Compensation Case No.43 of 1987 (Ex.22) for the acquired lands of adjoining village Chhani as also the award in Compensation Case No.41/87(A) of the same village (Ex.25). As for the compensation for trees, in leading Land Reference Case No.1155 of 1993, a total amount exceeding Rs.13.50 lakhs is awarded against the vague claim of Rs.1,80,000/= without any evidence worth the name in that regard. Similar amounts far exceeding the claim in the plaint or even without any corresponding claim in the plaints, on the same basis are awarded in other cases of the same group. 4.1 Perusing the said awards at Exs.21, 22 and 25, it was seen that the award in Compensation Case No.12 of 1994 treated by the trial Court as the "most reliable evidence to determine the actual market price" is a consent award dated 24.11.1997 in which the date of notification under Section 4 of the Act was 8.11.1995 as against 16.10.1989 in the present case. The market price of the lands of adjoining village Kharachiya were fixed by that award at Rs.185.13 ps. per sq. mtr. after hearing and negotiations as also considering the relevant factors and on condition that no increase on account of solatium or additional amount @ 12% p.a. was to be paid. If the market price of comparable lands acquired in the present case were to be reduced at the rate of 10% per year to arrive at the proper market price before six years, i.e. in the year 1989 and if solatium and statutory benefits were discounted, it would come to around Rs.60/= per sq. mtr. As against that, by the impugned judgment, the market price is fixed at Rs.150/= per sq. mtr. mainly on the basis of the said consent award. 4.2 As for the other awards at Exs.22 and 25 relied upon by the claimants, they are also consent awards in respect of the lands of adjoining village. The date of notification under Section 4 of the Act in Ex.22 is 28.9.1988 but the lands acquired under the same are of village Chhani which is abutting on National Highway No.8. Village Chhani is situated within the limits of Vadodara Urban Development Authority and was covered by the Urban Land Ceiling limits. And, the market price was fixed by the award at Rs.112.55 ps. after recording the consent as regards no further claims on account of solatium or other increases, additional compensation or interest. 4.3 As for the consent award in Compensation Case No.40/87(A) (Ex.25), the date of notification under Section 4 was 13.7.1989 and after considering the recent instances of sale, fertility and potentiality of lands, the market price fixed by consent appears to be at Rs.78.50 ps. per sq. mtr. with the understanding that no further amounts towards solatium or additional compensation was to be paid. Thus, the comparable case nearest in point of time appears to be the award in Compensation Case No.40/87(A) (Ex.25) whereby market price is fixed at Rs.78.50 ps. per sq. mtr. inclusive of the statutory benefits under Section 23 of the Act. Remarkably, the dates of notification under Section 4 of the Act in the comparable cases are not even mentioned in the impugned judgments. 5. As for the standing trees, none of which were even mentioned as such in the application, cryptic observation and basis for awarding amounts running into millions of rupees, in the impugned judgment, is as under: "11. In regard of standing trees position dated 22.9.1994, no assessment of the standing trees are shown but simultaneously below Exh.33, it shows that as per assessment by the Assistant Director of Agriculture, there was standing crops in the concerned fields of the applicants which is contrary fact on record in the cross examination by the opponent side have no personal knowledge about the assessment of the crops made by the Assistant Director of Agriculture Department, the valuation of the crops is also assessed." As seen earlier, Ex.33 appears to have been surreptitiously introduced into evidence by the list at Ex.32 after written arguments which were already taken on record and exhibited as Ex.32 and it appears to be just a statement showing number of trees with their value against the name of landholder and survey number of the land. No evidence whatsoever has been led about the authenticity or veracity of the statement or about the factum of such trees having ever been there. While the list at Ex.32 shows the date of statement to be 23.7.1998, the above para in the impugned judgment refers to the position of trees on 22.9.1994, as against the admission of the applicant in his cross-examination at Ex.15 that the possession was taken over in 1993 and at that time no crop was standing in the land. Thus, there was no basis for awarding any amount towards or by way of compensation for trees. 6. The impugned judgments in the following three groups of appeals suffer from the same vices and are almost identically worded and fixes the market price at the same rate on the same basis, although the exhibit numbers of the depositions and documents vary. 7. F.A.No.2494 to 2502 and 2562 to 2566 of 2004: In this group of 14 appeals, lands of adjoining village Bajwa have been acquired for the same purpose by notification under Section 4 of the Act dated 15.6.1989 and the award fixing market price at Rs.15/= per sq. mtr. was made in Compensation case No.42 of 1987. Upon references being made under Section 18 of the Act, the cases were consolidated with Land Reference Case No.642 of 1996 and oral evidence of the applicant therein, i.e. Shri Manharbhai Ravjibhai Patel, was recorded at Ex.16. The claimants relied upon the documentary evidence at Exs.17 to 27 and the Special Land Acquisition Officer was examined at Ex.30. No oral or documentary evidence was led by the appellant. And, by a similar judgment as in the above cases and relying upon the same award in Compensation Case No.12/94 (Ex.22), the same market price at Rs.150/= per sq. mtr. is fixed in the impugned judgment. By a similar process of inducting and exhibiting documentary evidence vide list Ex.36, after the stage of arguments and without the veracity or authenticity of the documents at Exs.37 to 40 having been put to any test, lakhs of rupees are awarded as compensation for trees in Land Reference Cases No.406/94, 409/94, 415/94, 423/94, 425/94 and 642/96. In the main Land Reference Case No.642/96, as against the amount of Rs.3,57,206/= awarded by the Land Acquisition Officer, a claim of Rs.1,45,93,602/= was made and an award for Rs.31,47,134/= and interest and costs is made under the impugned judgment. 8. First Appeals No.2433 to 2437 of 2004: In this group of five appeals, the acquired lands were situated in the same village Bajwa and the date of notification under Section 4 of the Act was 1.9.1989. By the award dated 9.10.1992, the Land Acquisition Officer had fixed the market price at Rs.17.50 ps. per sq. mtr. in Compensation Case No.10/89. The references of the claimants were consolidated with Land Reference Case No.777/94 in which the applicant was examined at Ex.21. Documentary evidence was produced vide Exs.22 to 34 and the Special Land Acquisition Officer was examined at Ex.36. Again, no oral or documentary evidence was led by the appellant. And again, on the same basis of the award in Compensation Case No.12/94 of the adjoining village Kharachiya, market price was fixed at Rs.150/= per sq. mtr. by the impugned judgment. 8.1 Going through the Records & Proceedings of original Land Reference Case No.777/94, it was noticed that after the order of reference, a regular plaint running into 16 pages was filed and in that, besides the claim for additional compensation for the land @ Rs.40/= per sq. ft., claim of Rs. 4000/= for, in all 5 trees, was made. Over and above Rs.1,42,500/= awarded by the Land Acquisition Officer, a claim for Rs. 35,52,820/= was made in the plaint dated 9.12.1992. Thereafter, an application in the nature of appeal dated 6.7.1996 was made with a prayer to quash and set aside the order dated 10.5.1996 passed by the Special Land Acquisition Officer by which the application of the claimants for making an award in respect of standing crops was rejected. That application was titled and described as "Standing Crops Reference Application". Thereafter, by an application dated 3.1.1998 (Ex.6), the applicant had sought production of panchnama and valuation report showing the amount of compensation for standing crop. Thereafter, on page 42 in the Records and Proceedings appears a draft order, without date or signature, granting the aforesaid application. Thereafter there is an interim award in Land Reference Case No.777/94 by which Rs.47,000/= is purported to have been awarded with interest and costs. That order is dated 7.9.1998 and purported to have been made in terms of the order Ex.9, which order is not on record. The award dated 9.10.1992 in Compensation Case No.10/89 which was under challenge before the Court is on record at Ex.33. According to that award, the lands in question are near developed commercial or residential area and south of village Bajwa and abutting on Bajwa-Koyali Road. After considering the claims and evidence of the claimants and the recent instances of sale or acquisition in the area, the Land Acquisition Officer had fixed market price at Rs.17.50 per sq. mtr. and also awarded the statutory benefits under Section 23 of the Act. Compensation for structures and trees was also separately calculated and awarded vide Annexure-C to the award, according to which, the structures were mostly unauthorised tin roofs or cabins and trees in the land of the claimants in Land Reference Case No.777/94 were in all three valued at Rs.75/=. As against that, not only that a claim of Rs.47,000/= with costs and interest was already allowed, but an additional amount of Rs.84,800/in Land Reference Case No.778/94 and Rs.37,400/= in Land Reference Case No.959/96 were awarded by the impugned judgment on the basis of unauthenticated documentary evidence introduced by the same process as described hereinabove. 8.2 During the course of arguments, it was revealed by the learned counsel that the aforesaid interim awards dated 7.9.1998 made by the Extra Assistant Judge in Land Reference Cases No.414/94, 417 to 420/94, 423/94, 451/94 and 777/94 were challenged in this Court in First Appeals No.7893 to 7900 of 1999 which were disposed by this Court by order dated 17.3.2001 with the observation as under: "The learned AGP has given out that the main reference is still pending before the reference Court and that by this interim award, the direction has been issued for payment of the amounts against the price of standing trees with interest on the market price for trees on the acquired lands at the rate of 9% per annum from the date of taking over the possession till one year and thereafter at the rate of 15% per annum till the date of realisation from the date of the award or from the date of taking possession whichever is earlier in time. The learned AGP has also given out that the possession had already been taken over way back in the year 1994. The learned AGP has failed to point out any illegality or infirmity in the impugned order passed by the reference Court on 7th Sept. 1998. Whereas the impugned order is only an interim award and the main reference is still pending, naturally, the reference Court will keep in view this interim award at the time of passing the final award. No case is made out for interference. All these eight First Appeals have no merit. The same are hereby dismissed with no order as to costs." 8.3 The reasoning in the impugned judgment for awarding compensation for trees in two cases of this group reads as under:- "12. In light of above facts, it is duly proved that the present claimants are not getting the amount of the standing trees to which they are likely to be entitled. It is a fact prima facie on record and simply because the possession receipts shows no standing crops, it is not sufficient that there were no standing crops, the Assistant Director of the Agriculture made a false assessment therefore relying upon the documentary evidences of the opponent side for which there is no reason to disbelieve that the claimants are held entitled to recover compensation of the standing trees under the present references." Thus, the impugned judgment and order awarding total additional compensation of nearly Rs.65 lakhs with interest and costs was passed and decree was drawn on the same day. No arguments are addressed in these appeals to challenge, or on the basis of, the aforesaid interim awards. 9. First Appeals No.2431 and 2432 of 2004: In these two appeals, the lands acquired for the same purpose were of village Kharachiya and the award fixing market price at Rs.12.50 per sq. mtr. in Compensation Case No.40/87 was under challenge before the Court in Land Reference Case No.1016/93. As against the compensation of Rs.44,996/= awarded by the Land Acquisition Officer, a claim for total amount of Rs.15,23,013/= was made without any mention of any trees or compensation therefor in the plaint. The date of notification under Section 4 of the Act was 13.7.1989 and by an almost identical judgment, relying upon the award in Compensation Case No.12/94 (Ex.20), market price was fixed at Rs.150/= per sq. mtr. And, by the same process of inducting documentary evidence vide list Ex.32 and even without assigning any exhibit numbers (except in the Roznama) on the documents produced vide Ex.32, the impugned judgment awarding additional compensation of Rs.1,06,520/= in Land Reference Case No.1015/93 and Rs.1,06,000/= in Land Reference Case No.1016/93 for trees and awarding total additional compensation of Rs.10,70,912/= with costs and interest was passed. The decree was drawn on the same day, i.e. 7.05.2004. 10. Shocking common features: The shocking common features that emerge from the record of the trial Court and four judgments impugned in these appeals may be summarised as under:- (a) The amounts not even claimed by the claimants in the plaint filed by them are awarded by the impugned judgments without any basis or justification on record and without any discussion of calculation. (b) The depositions of the claimants are in the form of printed affidavits obviously prepared outside the Court and years before being produced in the Court. Before such depositions are subjected to cross-examination, nothing more is stated on oath to justify or substantiate the additional claims towards trees. Cross-examination by the learned Additional Government Pleader had completely taken away the basis for such