IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 2880 of 1998 to FIRST APPEAL No 2966 of 1998 with CIVIL APPLICATIONS NOS. 5140 TO 5226 OF 1998 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and MR.JUSTICE M.H.KADRI ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question 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 Civil Judge? -------------------------------------------------------------- EXECUTIVE ENGINEER Versus VAGHJIBHAI BABUBHAI - ADMN. OFJIVIBEN WD/O BABUBHAI HIRABHAI -------------------------------------------------------------- Appearance: MR GHANSHYAM AMIN for Petitioner Mr. H.J.Jani,AGP for Special land Acquisition officer in first appeals Nos. 2880/98 to 29232/98 with civil applications Nos. 5140 to 5183 of 1998. Mr. M.R.Raval , AGP for special land acquisition officer in First appeals Nos. 2924 /98to 2966/98 with civil applications Nos. 5184 to 6\5226 of 1998. Mr,.A.J.Patel,advocate for the original claimants- ------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE M.H.KADRI Date of decision: 06/03/99 ORAL JUDGEMENT Per Panchal.J." By means of filing these first appeals under section 54 of the Land Acquisition Act, 1894 read with section 96 of the Code of Civil Procedure, 1908 , the acquiring body has challenged the legality of the common award dated February 13, 1998 rendered by the learned 2nd Extra Assistant Judge, Kheda at Nadiad in Land Reference Cases Nos. 782/93 to 812/93 , 1081/93 to 1089/93, 1153/94 to 1165/94, 1189/ 94 to 1191/94, 2055/94 to 2060/94, 2173/94 to 2174/94, 2203/94 to 2224/94 and 2324/94. All the above referred to References were consolidated with Land Reference Case No. 884/93 which was treated as the main case and in which the parties had led common evidence. As common questions of fact and law are involved in these appeals, we propose to dispose them of by this common judgment. The Executive Engineer of Narmada Project for Main Canal had proposed to the State Government to acquire agricultural lands of village Baladha, taluka Thasra, District-Kheda for public purpose of Narmada Main Canal. . On scrutiny of the said proposal, the State Government was satisfied that the agricultural lands of village Baladha were likely to be needed for the said public purpose. In the circumstances, different notifications under section 4 (1) of the Land Acquisition Act,1894 ('the Act' for short) were issued and published in the Government Gazette particulars of which are mentioned in para 1 of the impugned judgment. The land owners whose lands were proposed to be acquired were served with notices under section 4 of the Act and they had filed their objections against the proposed acquisition. After considering their objections, the Special Land Acquisition Officer ,Narmada Project, had forwarded his different reports to the State Government as contemplated by section 5-A (2) of the Act. On consideration of those reports, the State Government was satisfied that agricultural lands of village Baladha which were specified in different notifications published under section 4(1) of the Act, were needed for public purpose of Narmada Main Canal. Therefore, declarations under section 6 of the Act were made which were also published in Official Gazette. The interested persons were,thereafter, served with notices under section 9 of the Act for the purpose of determination of compensation. The claimants appeared before the Special Land Acquisition Officer and claimed compensation at the rate of Rs.10,000/- per Are. Having regard to the materials placed before him, the Special Land Acquisition Officer by different awards offered compensation to the claimants at the rate of Rs. 300/- per Are for irrigated lands and Rs. 200/-per Are for non-irrigated lands. The particulars of different awards are also mentioned in detail in par 1 of the impugned judgment. The claimants were of the opinion that offer of compensation made by the Special Land Acquisition Officer was inadequate. Therefore, they made applications in writing requiring the Special Land Acquisition Officer to refer the matters to the court for determination of compensation. Accordingly, References were made to the District court, Kheda at Nadiad which were numbered as noted in the earlier part of this judgment. In the Reference applications, it was pleaded by the claimants that having regard to the high fertility of the lands acquired, they were entitled to higher compensation. It was claimed that the claimants were taking three crops in a year and were earning more than Rs. 50,000/- per Bigha and,therefore, they should be awarded compensation at the rate of Rs. 10,000/- per Are. The present appellant as well as respondent No.2 contested the Reference applications by filing reply at Exh. 5 .In the reply, it was averred that the Special Land Acquisition Officer had assessed the market value of the acquired lands on the basis of fertility of land, development of surrounding area as well as sale transactions which had taken place in the last five years and,therefore, the claimants were not entitled to any additional amount of compensation. Upon rival assertions made by the parties, necessary issues for determination were raised by the Reference Court. In order to substantiate the claims advanced in the Reference applications, witness Vaghjibhai Babulal was examined by the claimants at Exh. 36. The witness deposed before the court that the lands acquired were fertile and the farmers were taking three different crops in a year and were earning net profit of more than Rs. 10,000/- per Are. The witness claimed before the court that most of the farmers were taking crop of tobacco and were earning substantial amount. In cross-examination, the witness produced bills indicating sale of tobacco. The claimants produced receipts issued by the competent authority indicating payment of charges for supply of water from Mahi Canal and Vanghroli tank, at Exhs. 10 to 20 and 30 to 33. Extract from the register of demand charges by irrigation department of Kheda District Panchayat for the year 1989/90 were produced at exh 23;whereas, to prove the fact that farmers were using electricity for the purpose of irrigation in the years 1989-90 and 1990-91, different bills were produced at Exh. 24 to 27. The extracts from village forms 7/12 for the years 1989-90 and 1990-91 were produced by the claimants at Exh. 38 to 72. Certified copies of price list prepared and issued by the Kapadvanj Taluka Agricultural Produce Market Committee for the years 1989-90 and 1991-91 were produced at Exh. 73 and 74. The claimants had also relied upon deposition of expert Mohanbhai which was recorded in another case viz. Land Acquisition case No. 356/94 in relation to agricultural lands of village Antroli and produced the same at Exh.76. Certified copy of the report submitted by expert Mohanbhai relating to agricultural lands of village Antroli was produced by the claimants at Exh. 77; whereas, a copy of the Krishi Jivan Silver Jubilee Magazine on the basis of which expert Mohanbhai had prepared detailed data, was produced at Exh. 75/3. The claimants had also submitted written arguments for consideration of the Reference court at Exh. 75. On behalf of the present appellant as well as respondent No.2, no one was examined but the learned Government Pleader had produced certain documents for consideration of the Reference court . Joint measurement data prepared in respect of the agricultural lands of village Baladha was produced at Exh.81 ; whereas, a copy of paragraph 104 of the Land Acquisition Manual was produced at Exh. 82. On behalf of the acquiring body, register showing pucca wells of village Baladha and price thereof was produced at Exh.. 83. Written arguments were submitted at Exh. 86. On consideration of the evidence led by the parties, the Reference court held that the sale transactions which had taken place in last five years and which were considered by the Special Land Acquisition Officer for determining compensation were not relevant for the purpose of ascertaining the market value of the acquired lands as neither the vendor nor the vendee nor the scribe of any of the deeds was examined to present the relevant features before the court. The Reference court noted that the acquired lands were assessed as irrigated lands and,therfore, the claimants were not entitled to additional compensation for wells situated therein. The Reference court noticed that neither the claimants nor the acquiring authorities had produced any document of sale transaction relating to the acquired lands or lands situated nearby the acquired lands to ascertain the market value of the acquired lands as on the relevant dates and thus, the best evidence was not available for determining the market value of the acquired lands. After placing reliance on the deposition of witness Vaghjibhai Babulal as well as 7/12 extracts which were produced at Exhs.28 to 72, the Reference court held that some of the claimants were cultivating crop of paddy in monsoon season and second crop of wheat in another season by means of irrigation facility;whereas, some of the claimants were cultivating crop of millet in monsoon season and another crop of tobacco in another season. Thereafter,the Reference court proceeded to determine the yield of tobacco as well as millet. The court held that average yield of tobacco was 2200 K.G. per hector and the minimum price of tobacco at the relevant time was Rs. 1,750/- per 100 K.G. The Reference court, therefore,concluded that net profit from the crop of tobacco was Rs. 36,000/- per hector after deducting the cost at the rate of 25% of annual yield. So far as crop of millet is concerned, the Reference court held that average annual yield of millet was 3000 K.G. per hector and minimum price of millet at the relevant time was Rs 250/- per 100 K.G. Accordingly, it was deduced that total yield of millet with its price was Rs 7,500/-per hector. The Reference court added the net yield derived from the crop of tobacco with the net yield derived from the crop of millet and held that as per the first pattern of crop , the claimants were getting total yield worth Rs. 46,000/- per hector. So far as the second pattern is concerned, it was noticed by the Reference court that the claimants were taking crop of paddy as well as crop of wheat. After taking into consideration the detailed data prepared by expert Mohanbhai, Exh.77, it was held that minimum yield of paddy crop was 4000 K.G. per hector and its price at the relevant time was Rs.350/-per 1000 K.G.. After multiplying the total yield of paddy crop with its price, the Reference court held that the total yield from the crop of paddy was Rs. 14,000/-per hector. As far as wheat is concerned, the Reference court held that minimum yield of wheat was 4000 K.G. per hector and its price at the relevant time was Rs. 375/-per 100 K.G. In order to get total yield from the wheat crop, the Reference court multiplied the total yield with its price and held that total yield from wheat crop was Rs 14,000/- per hector. After making calculations as indicated above, the Reference court in order to find out the average yield of two patterns,held that the total yield of two patterns was Rs. 74,500/per hector and after dividing it by two, further held that the income from the yield of crops was Rs 37,250/- per hector. The Reference court was of the opinion that 50% of the value of crop should be treated as cost for raising crop and multiplier of 10 should be applied to the facts of the case. In the ultimate decision, the Reference court has held that the claimants are entitled to compensation at the rate of Rs. 1,600/- per Are , by the impugned common award giving rise to the present appeals. Mr. G.H.Amin ,learned counsel for the appellant submitted that deposition of the so called expert Mohanbhai which was recorded in Land Reference case No.356/94 and which related to the lands of village Antroli, could not have been exhibited nor could have been read in evidence without recording a finding that the said witness was incapable of giving evidence or was kept out of way by the adverse party or it was not possible to secure his presence without delay and expenses and,thereore, the impugned award which is based on the said inadmissible evidence should be quashed . The learned counsel for the appellant asserted that no reliable and cogent evidence has been led by the claimants to establish the yield of different crops and, therefore, the impugned common award should be set aside .It was stressed that the method adopted by the Reference court for determining the market value of the acquired land on yield basis is erroneous and,therefore, the appeals should be allowed. The learned counsel for the appellant emphasised that extracts of village forms 7/12 produced by the claimants do not establish that the claimants were taking two crops in a year and,therefore, the compensation which is determined on erroneous basis should be set aside. Mr. A.J.Patel, learned counsel for the claimants submitted that as no better evidence was available, the Reference court was justified in determining the market value of the acquired lands on yield basis and,therefore, the appeals should be dismissed. The learned counsel for the claimants argued that the Reference court has rendered a just award which should not be set aside by this court in the present appeals. In the alternative, it was submitted by the learned counsel that Civil Applications Nos. 1538/99 and 1564/99 filed by the claimants by which permission is sought to produce additional evidence at the appellate stage should be allowed and the court should determine the market value of the acquired after taking into consideration the said evidence . We have heard the learned counsel appearing for the parties at length and also taken into consideration the record of the case .At the outset, we may mention that the method adopted by the Reference court for the purpose of ascertaining the market value of the acquired lands is highly unsatisfactory. Before determining the market value of the acquired lands on yield basis , the Reference court has not taken into consideration the relevant principles laid down by the Supreme court as well as by this court in several reported decisions and more particularly the principles laid down by the Supreme court in the case of Special Land Acquisition Officer vs. P. Veerabhadrappa, AIR 1984 SC 774. We have carefully gone through the evidence of witness Vaghjibhai Babulal recorded at Exh. 36. It is true that it was asserted by the witness that the claimants were taking different crops in a year and had also specified three crops which according to him were being taken by the claimants in a year.But on scrutiny of evidence and more particularly extracts of village form 7/12, it is evident that the said assertion is not well founded at all. The said extracts show that all the farmers were taking only one crop in a year. The record further shows that 30 farmers were taking crop of tobacco, whereas , rest of the farmers were taking crop of paddy and some few farmers were taking crop of wheat in the whole year. No satisfactory evidence was led by the claimants to establish that average yield of tobacco was 2200 K.G. per hector or that of millet was 3000 K.G. per hector or yield of paddy crop was 4000 K.G. per hector or yield of wheat crop was 4000 K.G. per hector. In the circumstances, we are of the opinion that without any factual basis whatsoever, the Reference court has determined the market value of the acquired lands on yield basis and,therefore, the finding recorded by the Reference court with regard to determination of market value of the acquired lands will have to be set aside . Moreover, the evidence of expert Mohanbhai which was recorded in Land Reference case No. 356/94 in relation to the lands of village Antroli could not have been exhibited in this case nor could it have been read in evidence without recording satisfaction as contemplated by section 33 of the Indian Evidence Act. The record of the present case does not indicate that any satisfaction was recorded by the Reference court to the effect that witness Mohanbhai was dead or that he was incapable of giving evidence or was kept out of way by the adverse party or it was not possible to secure his presence. without delay or expenses. Similarly, Exh.77 which was a schedule prepared by so called expert Mohanbhai with reference to the agricultural lands of village Antroli could not have been exhibited in this case and used for the purpose of determining the market value of the acquired lands. Again, copy of Krishi Jivan Silver Jubilee Magazine which was produced at Exh. 75/3 and on the basis of which expert Mohanbhai had prepared his report could not have been relied upon by the Reference court for determining the market value of the acquired lands as that magazine had nothing to do with the agricultural lands of village Baladha and the said magazine was published in the year 1994,whereas, different notifications issued under section 4 (1) of the Act were published in the present case in the year 1990. Thus, we find that the Reference court has relied upon inadmissible evidence while determining the market value of the acquired lands and this vitiated the impugned common award. In normal circumstances, we would have remitted the matters to the Reference court with liberty to the parties to lead evidence in the matter to enable the Reference court to determine the market value of the acquired lands as on the relevant dates However, remittance of matters at such a distance of time is likely to cause prejudice not only to the claimants but also to the acquiring authorities as it may not possible for the parties to adduce relevant evidence before the court to enable it to determine the market value of the acquired lands. Remand of matters is also likely to put parties to avoidable expenses . The Supreme court has emphasised in several reported decisions that in land acquisition cases, evidence on record should be scrutinised critically and minutely by the court and an attempt must be made to determine the market value of the acquired lands in cases of compulsory acquisition of lands. We will,therefore, now proceed to consider the two civil applications filed by the claimants wherein they have sought permission of court to allow them to produce additional evidence at appellate stage. In Civil Application No. 1538/99, it is stated that the application is made for the purpose of producing additional evidence with a view to enabling the court to do complete justice between the parties. It is claimed therein that the Collector, Kheda had passed an order on May 21, 1990 fixing estimated yield of crops with a view to determining the amount of land revenue in respect of lands of villages named in the schedule to the said order for the year 1989-90 and the claimants should be permitted to place reliance on the said order as the said order could not be obtained notwithstanding exercise of due diligence at the relevant time when land reference cases were heard by the Reference court. The claimants have proceeded to plead that the said order clearly indicates the estimated yield of crops in the villages named in the schedule to the said order and as village Baladha is also mentioned in the said schedule, additional evidence should be permitted to be produced at appellate stage. The claimants have further mentioned in the application that the Mamlatdar had prepared statements showing final estimates of crops yielded in the year 1989/90 in the lands of villages Menpura and Wanghroli of taluka Thasra, but those statements could not be obtained by the claimants at the relevant time inspite of due diligence exercised by them and,therefore, permission should be granted to them to produce the statements as additional evidence at appellate stage. What is stressed in the application is that additional documents which are sought to be produced as additional evidence would help the court in determining the market value of the lands acquired if read with the evidence of the claimants recorded in the present case and,therefore, the application should be allowed. In Civil application No. 1564/99, the applicant has stated that the witness who was examined on behalf of the applicant was not able to produce extracts from village forms 7/12 in respect of all the claimants and, therefore, extracts from village forms 7/12 in relation to other claimants should be permitted to be brought on record in order to find out as to which crop was being grown by different claimants. The applicant has proceeded to state that in the Pahani Patraks/ village forms 7/12 for the years 1989-90 and 1990-91, in respect of the lands under acquisition, crops of millet, tobacco and paddy were shown to have been taken in the land but the Reference court has not considered this aspect while determining the amount of compensation payable to the claimants and,therefore, the application for additional evidence should be allowed. The applicant has claimed that extracts of village forms 7/12 could not be produced before the Reference court as the applicant and other claimants were poor as well as illiterate and did not know about the relevance of those documents at all. What is stressed is that production of additional evidence at appellate stage would enable the court to appreciate the evidence which is already on record and determine just amount of compensation payable to the claimants and,therefore, the applicant should be permitted to adduce additional evidence at appellate stage. We have heard the learned counsel for the parties regarding production of additional evidence. The claim advanced by the claimants that the order dated May 21,1990 passed by the Collector,Kheda fixing estimated yield of crops could not be produced before the court notwithstanding exercise of due diligence at the relevant time,,deserves to be considered. The order of the Collector is relevant in order to determine the estimated yield of crop in village Baladha. Similarly, the statements prepared by the Mamlatdar showing final estimates of crops yielded in the year 1989-90 in the lands of villages Menpura and Wanghroli in taluka Thasra are also relevant for the purpose of determining the market value of acquired lands. When we have decided not to remit the cases to the Reference court with liberty to the parties to lead fresh evidence in the matter, it becomes necessary for this court to determine the market value of the acquired lands and,therefore, there is no manner of doubt that additional evidence is required by the court for the purpose of doing complete justice between the parties. We may state that on instructions, the learned counsel for the acquiring body has endorsed on Civil application No. 1538/999 for additional evidence that it be allowed and the documents not only be exhibited but contents thereof may be read in evidence while deciding the appeals. On the facts and circumstances of the case, we are of the view that Civil application No. 1538/99 deserves to be granted and is accordingly allowed. Annexure 'A' which is a true copy of the order dated May 21,1990 passed by the Collector ,Kheda is given Exh.No. 90; whereas, four statements prepared by the Mamlatdar showing final estimates of crops yielded in the year 1989-90 in the lands of villages Menpura and Wanghroli are given Exh. Nos. 91,92,93 and 94. Referring to Civil application No. 1564/99, we find that the witness who was examined on behalf of the claimants did not produce the Pahani Patraks/ village forms 7/12 for 1989-90 and 1990-91 in respect of the lands of all claimants .While determining the market value of the acquired lands on yield basis,it is