FA/1534/2006 1/31 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 1534 of 2006 with FIRST APPEAL No.2174 of 2006 For Approval and Signature: HONOURABLE MR.JUSTICE J.M.PANCHAL THE HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SPL.LAQ OFFICER - Appellant Versus HURABEN SIDDIKBHAI GANCHHI & 1 - Respondents ========================================================= Appearance : MR MIHOR H.JOSHI, ADDITIONAL ADVOCATE GENERAL WITH MR.S.S.PATEL, ASSISTANT GOVERNMENT PLEADER for Appellant MR ND NANAVATI, SENIOR ADVOCATE WITH HARSHIT S TOLIA for Respondent No.1. ========================================================= CORAM : HONOURABLE MR.JUSTICE J.M.PANCHAL and HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 4/08/2006 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE J.M.PANCHAL) FA/1534/2006 2/31 JUDGMENT First Appeal No.1534 of 2006 filed under Section 54 of the Land Acquisition Act, 1894 [“the Act” for short] read with Section 96 of the Code of Civil Procedure, 1908, is directed against judgment and award dated July 18,2005, rendered by the learned Presiding Officer, 3rd Fast Track Court, Patan, in Land Acquisition Reference Case No.2434 of 2002, by which the respondent No.1 is awarded additional compensation at the rate of Rs.350/- per sq.mt., over and above the compensation awarded to her by the Special Land Acquisition Officer at the rate of RS. 25/- per sq.mt., for her acquired land. First Appeal No.2174 of 2006 is filed by the respondent No.1 (orig.claimant) in First Appeal No.1533 of 2006 under the same provisions and against the same award of the Reference Court, wherein the respondent No.1 is claiming enhanced compensation at the rate of Rs.500/- per sq.mt., for her acquired land. FA/1534/2006 3/31 JUDGMENT As both the appeals involve common questions of facts and law, this Court proposes to dispose them of by this common judgment. 2. A proposal was received by the State Government to acquire the land of the respondent No.1 in First Appeal No.1534 bearing Survey Nos.347/10/1 & 347/10/2, admeasuring 45224 sq.mts., situated at Radhanpur, Taluka : Radhanpur, District : Patan, for the public purpose of construction of Office-Building/Colony under Narmada Canal Project. On perusal of the said proposal, the State Government was satisfied that the land belonging to the respondent No.1 was likely to be needed for the said public purpose. Therefore, a notification under Section 4(1) of the Act was issued, which was published in the Official Gazette on August 29, 1991. The respondent no.1 was served with notice under Section 4(1) of the Act. She lodged her objections against the proposed acquisition. FA/1534/2006 4/31 JUDGMENT After taking into consideration her objections, the Special Land Acquisition Officer forwarded his report to the State Government as contemplated by Section 5-A(2) of the Act. On consideration of the said report, the State Government was satisfied that the land belonging to the respondent No.1 specified in the notification published under Section 4(1) of the Act was needed for the public purpose of construction of Office-Building/Colony under Narmada Canal Project. Therefore, a declaration under Section 6 of the Act was made, which was published in the Official Gazette on January 9,1992. The respondent No.1 was thereafter served with notice for determination of market value payable to her for her acquired land. The respondent No.1 appeared before the Special Land Acquisition Officer and claimed compensation at the rate of Rs. 500/- per sq.mt. However, having regard to the materials placed before him, the Special Land Acquisition Officer by his award dated December 16, 1993 offered compensation to FA/1534/2006 5/31 JUDGMENT the respondent No.1 at the rate of Rs.25/- per sq.mt. The respondent No.1 was of the opinion that the offer of compensation made by the Special Land Acquisition Officer was quite inadequate and, therefore, by submitting an application in writing, she required the Special Land Acquisition Officer to refer the case to the Court for determination of just amount of compensation payable to her. Accordingly, reference was made to the District Court at Patan, where it was registered as Land Acquisition Reference Case No.2434 of 2002. 3. On behalf of the respondent No.1, her Power of Attorney Holder Mr.Raghurambhai Ranchhodbhai Thakkar was examined at Exh.26. It was claimed by the said witness in his testimony that the land acquired was even and highly fertile and that crops like millet, cotton, wheat, cumin-seed etc. were being grown, as facility of water was available round the year. According to the said witness, lands surrounding the acquired land, FA/1534/2006 6/31 JUDGMENT were put to non-agricultural use and if the land had not been acquired, the land acquired could have been used for non-agricultural purpose, and would have fetched very high amount, if sold. The witness explained that Radhanpur was the main centre of Taluka and was connected by railway. It was also mentioned by him that other facilities, such as telephone, post-office, STD Booths etc., were also available in Town. It was asserted by the witness that at the time of acquisition of the land, population of Radhanpur town was between 30,000 to 50,000 and that it was decided to set up Industrial Estate by G.I.D.C. The witness mentioned that the land under acquisition was assessed by the Office of Town Planning, Mehsana at the rate of Rs. 150/- per sq.mt., but, the correct value of the land was not mentioned therein, because the price of the land prevailing, in the vicinity of the acquired land, was Rs.1000/- per sq.mt. The witness examined on behalf of the respondent No.1 asserted that the respondent No.1 was entitled to compensation at FA/1534/2006 7/31 JUDGMENT the rate of Rs.500/- per sq.mt. In cross-examination by the learned advocate for the Special Land Acquisition Officer, it was stated by the witness that the amount of compensation offered by the Special Land Acquisition was accepted under protest. The suggestion made to the witness that no development had taken place in the Town or that the Town was not connected to National Highway, was denied by him. The suggestion made on behalf of the Special Land Acquisition Officer that value of the land under acquisition was Rs.25/- per sq.mt. and not more, was emphatically denied by him. In cross-examination by the Acquiring Body, it was stated by the witness that the award rendered by the Special Land Acquisition Officer was not a consent-award. The suggestion made to the witness that drought was prevailing in the area and, therefore, the respondent No.1 was not FA/1534/2006 8/31 JUDGMENT able to raise any crop on her land, was also denied by him. 3. After recording of testimony of power of attorney holder of the respondent No.1 was over, a purshis at Exh.27 was filed on June 27, 2005 indicating that the evidence to be led by the claimant was over and no further evidence was proposed to be led by the claimant. By the said purshis, on behalf of the respondent No.1 the Court was informed that evidence to be led on behalf of the claimant was closed. 4. On behalf of the Acquiring Body, Mr.Baleshkumar Alakhabhai Asari, who was Special Land Acquisition Officer, was examined at Exh.28. After referring to the procedure, which was undertaken for the purpose of acquiring the land of the respondent No.1, it was mentioned by the said witness that market value of the land acquired was determined by the Special Land Acquisition Officer on the basis of registered FA/1534/2006 9/31 JUDGMENT sale-deeds executed in the last five years before the date of the award. According to him, though Radhanpur was a big town, no noticeable facilities were available in the town, nor was the town industrially developed, nor was any arrangement available for providing water to the agricultural lands situated in the town. According to the witness, the land acquired was uneven and infertile, and even potable water was not available in Radhanpur town. In his testimony, the witness stated that the land acquired was situated in an uninhabited area of Radhanpur town and that the market value determined by the Special Land Acquisition Officer was proper. During the cross-examination by the claimant, the witness produced 7/12 Extract relating to Survey Nos.347/10/1 & 347/10/2 belonging to the respondent No.1. It was admitted by the witness that he had no personal knowledge about the acquisition proceedings and was deposing before the Court on the basis of the record available in FA/1534/2006 10/31 JUDGMENT the Office. It was admitted by the witness that it was difficult to describe the development which might have taken place, on the basis of contents of registered sale-deeds. The witness had to admit that, in fact, he had no personal knowledge about Radhanpur Town. 5. Further, on behalf of the Acquiring Body, witness Somabhai Sadabhai Shrimali, who was then discharging duties as Talati-cum-Mantri, was examined at Exh.33. During the course of recording of his testimony, he mentioned that he had seen the land belonging to the respondent No.1, which was acquired, and as Radhanpur was a drought affected area, the respondent No.1 was able to raise crops of millet, juvar etc. and that too only during the monsoon season. According to the witness, the land acquired was situated near Radhanpur-Harij State Highway. What was mentioned by the witness was that at the time of acquisition of the land in question, no development in the vicinity of the land had taken FA/1534/2006 11/31 JUDGMENT place. In cross-examination by the claimant, the witness mentioned that just near Narmada Colony, a big Shopping-Centre had come up and that Radhanpur Town was a developing town. The witness admitted that on the date of tendering of his evidence in the Court, the value of the land situated at Radhanpur was Rs.1000/- per sq.mt. 6. Yet another witness was examined on behalf of the Acquiring Body i.e. Karansinh M.Bhabhor, who was then holding the post of Deputy Executive Engineer, at Exh.35. The said witness mentioned in his testimony that the Special Land Acquisition Officer had determined the amount of compensation payable to the respondent No.1 after taking into consideration registered sale-deeds and determination of market value of the acquired land by the Special Land Acquisition Officer was proper. Though it was mentioned by him that Radhanpur is a big town, it was further stated by FA/1534/2006 12/31 JUDGMENT him that the land acquired was uneven and not fertile, as a result of which, the respondent no.1 was able to raise crop of only Juvar on the acquired land. The witness mentioned that the main occupation of the people residing in Radhanpur town was agriculture, cattle-breeding and agricultural labour. What was stated by him was that the land acquired was situated in uninhabited area of the town and was at a distance of more than 1 KM away from Gamtal land. It was asserted by the said witness that determination of compensation made by the Special Land Acquisition Officer was proper and that the respondent No.1 was not entitled to compensation at the rate of Rs.500/- per sq.mt. In his cross-examination by the claimant, it was stated by the witness that at Exh.36 he had produced Index for five years, wherein particulars of sale-deeds were mentioned. It was admitted by the witness that except sale-deeds, no other evidence was adduced during the course FA/1534/2006 13/31 JUDGMENT of determination of market value by the Special Land Acquisition Officer. It was also mentioned by him that it was possible that in the registered sale-deeds, correct market value of the land might not have been indicated. According to him, he was personally not knowing as to which crops were being raised on the acquired land, nor was he able to mention as to on which basis average sale price was mentioned by the Talati- cum-Mantri in Exh.36. After recording of evidence of the witnesses as mentioned above was over, a purshis dated July 8, 2005 was submitted on behalf of the Acquiring Body mentioning, inter alia, that it was not proposed to examine other witnesses on behalf of the Acquiring Body. The purshis submitted on behalf of the Acquiring Body was recorded by the learned Judge of the Reference Court. Thereafter, on behalf of the respondent No.1, an application at Exh.44 was submitted on July 16, 2005 stating, inter alia, that list of documents was omitted to FA/1534/2006 14/31 JUDGMENT be filed and, therefore, the matter be taken on board in the interest of justice. The said application was granted by the learned Judge. As the application Exh.44 was granted by the learned Judge, another application of the same date was filed on behalf of the claimant at Exh.45 stating, inter alia, that the documents which were produced along with the list at Exh.28, which were exhibited as Exhs.30 to 50 in Land Acquisition Reference Case No.2433 of 2002, should also be permitted to be produced along with list, though they were xerox copies of Exhs.30 to 50 produced in Land Acquisition Reference Case No.2434 of 2002, because they were part of Government record and it was not possible by any one to concoct the same subsequently. The said application was also granted by the learned Judge by an order dated July 16, 2005. Thereupon, on behalf of the claimant, a list of documents at Exh.46 was submitted on July 16, 2005, and as many as 21 documents were sought to be produced and relied upon by the claimant. After production FA/1534/2006 15/31 JUDGMENT of list of documents at Exh.46, another application on behalf of the respondent No.1- claimant was submitted at Exh.47 stating, inter alia, that xerox copies of documents, which were produced at Exhs.30 to 50 on the record of Land Acquisition Reference Case No.2433 of 2002, were being produced on the record of this case and, therefore, the same be exhibited and read in evidence. The application submitted on behalf of the respondent No.1 was granted by the learned Judge by an order dated July 16, 2005. 7. On appreciation of evidence adduced by the parties, the Reference Court held that in view of the contents of Exh.67, dated July 17, 1990, which was Certificate issued by the Town Planning and Valuation Department, Mehsana, price of the land acquired was Rs.150/- per sq.mt., whereas in view of the contents of Certificate dated September 3, 1993 given by the Town Planning and Valuation Department, Mehsana, market value of the land acquired was Rs.250/- per sq.mt. The FA/1534/2006 16/31 JUDGMENT learned Judge held that certificate dated September 3, 1993 indicating that the price of land adjoining to the acquired land was Rs.250/- per sq.mt. was not relevant piece of evidence for determining market value of the land acquired, as it was issued two years after the date of publication of notification under section 4(1) of the Act for acquiring the land in question. It was further held by the learned Judge that certificate dated July 17, 1990 indicating that the price of the acquired land was Rs. 150/- per sq.mt. Was a relevant piece of evidence for the purpose of determining market value of the land acquired and after so holding, placed reliance on the said certificate. The learned Judge of the Reference Court accepted the contention advanced on behalf of the claimant that considering the time gap between the above-mentioned Certificate and notification published under Section 4 of the Act, the claimant was entitled to escalation in price of land acquired at the rate of 10% per year for determining its market value. On the FA/1534/2006 17/31 JUDGMENT said basis, the Reference Court by impugned judgment and award has held that the respondent No.1 is entitled to compensation at the rate of Rs.350/- per sq.mt. giving rise to above-numbered two appeals. 8. Mr.Mihir H.Joshi, learned Additional Advocate General, with Mr.Sudhanshu S.Patel, learned Assistant Government Pleader, contended that Exh.67, which is a photostat copy of the certificate dated July 17, 1990 issued by the Town Planning and Valuation Department, could not have been received in evidence, as it was neither original document nor certified copy of original document, nor complete document was produced for perusal of the Court and, therefore, enhanced compensation awarded to the claimant by the Reference Court should be set aside. It was argued that except production of Exh.67 and Exh.68, which is a post-notification certificate dated September 3, 1993 issued by the Town Planning and Valuation Department, Mehsana FA/1534/2006 18/31 JUDGMENT showing that market price of land adjoining to the land acquired was at the rate of Rs.250/- per sq.mt., no reliable evidence at all was adduced by the claimant and, therefore, the appeal filed by the State Government should be accepted. What was highlighted by the learned counsel for the State Government was that the impugned award suffers from vice of absence of evidence justifying enhanced compensation at the rate of Rs.350/- per sq.mt. and, therefore, the matter should be remanded to the Reference Court for deciding the same de novo after permitting the parties to adduce evidence in support of their respective claims. 9. Mr.N.D.Nanavati, learned Senior Advocate, with Mr.H.S.Tolia, learned advocate for the claimant, contented that Exh.67 produced by the claimant was rightly received in evidence and read by the Reference Court, as a result of which, First Appeal filed by the State Government has no substance and, therefore, the same should FA/1534/2006 19/31 JUDGMENT be dismissed. According to the learned counsel for the claimant, the contents of Exh.67 were never disputed either by the Special Land Acquisition Officer or the Acquiring Body and, therefore, the Reference Court was justified in placing reliance thereon while determining the amount of compensation payable to the claimant. It was maintained on behalf of the claimant that even Exh.68 was also a relevant piece of evidence, on the basis of which compensation payable to the claimant can be determined and, therefore, the matter should not be remanded to the Reference Court as urged on behalf of the State Government, more particularly when the Special Land Acquisition Officer had also made reference to Exh.67 in his Award. According to the learned counsel for the claimant, on the basis of Exh.68 the claimant would be entitled to compensation at the rate of Rs.500/- per sq.mt. and, therefore, after dismissing the appeal filed by the State Government, the appeal filed by the claimant for enhancement of compensation should FA/1534/2006 20/31 JUDGMENT be accepted by the Court. 10. This Court has heard Mr.Mihir H.Joshi, learned Additional Advocate General with Mr.S.S.Patel, learned Assistant Government Pleader for the appellant, as well as Mr.N.D.Nanavati, learned Senior Advocate, with Mr.S.H.Tolia, learned counsel for the respondent no.1, at length and in great detail. This Court has also considered the evidence adduced by the parties before the Reference Court. 11. From the record of the case, it is evident that witness Raghurambhai Ranchhodbhai Thakkar, who is power of attorney holder of the original claimant, was examined at Exh.26 in support of claim for enhanced compensation. However, it is an admitted fact that no sale-deed was produced for perusal of the Court by the claimant in support of her claim that she was entitled to compensation at the rate of Rs.500/- per sq.mt. What was produced by the claimant with the list FA/1534/2006 21/31 JUDGMENT at Exh.46 was Index of registration of sale-deeds for perusal of the Court. The certified copies of the sale-deeds were never produced by the claimant before the Reference Court. Under the circumstances, Index could not have been taken into consideration and is rightly not taken into consideration while determining the question as to whether the claimant was entitled to compensation at the rate of Rs. 500/- per sq.mt. What was relied upon by the claimant in support of her claim for enhanced compensation was certificate dated July 17, 1990 given by the Town Planning and Valuation Department, Mehsana indicating that the market value of the land was assessed at Rs. 150/- per sq.mt., and another certificate dated September 3, 1993 issued by the Town Planning and Valuation Department, Mehsana, showing that the market price of adjoining land was Rs. 250/- per sq.mt. Those two documents were produced at Exhs.67 & 68 respectively. However, perusal of the original record received from the Reference Court makes it very clear that what was FA/1534/2006 22/31 JUDGMENT produced before the Reference Court was xerox copy of certificate dated July 17, 1990 issued by the Town Planning and Valuation Department, Mehsana. The document produced at Exh.67 is neither original certificate issued by the Town Planning and Valuation Department, Mehsana, nor it is certified copy of the same and, therefore, the same could not have been received and read in evidence. It is an admitted position that no one was examined by the claimant from the Town Planning and Valuation Department, Mehsana to prove the contents of Exh.67 dated July 17, 1990. Further, the said document was sought to be produced by the claimant with list at Exh.46, but, as observed earlier, production of the same was objected to by the Special Land Acquisition Officer and the Acquiring Body. Under the circumstances, it was incumbent upon the claimant to prove the document as required by the provisions of the Indian Evidence Act, 1872. Section 61 of the Evidence Act provides that the contents of documents may be proved either by FA/1534/2006 23/31 JUDGMENT primary or by secondary evidence, and as per Section 62 of the said Act, primary evidence means the document itself produced for the inspection of the Court. Admittedly, in this case, original of Exh.67 was not produced for inspection of the Court at all. Secondary evidence as explained by Section 63 of the Act would be certified copies given under the provisions of the Evidence Act, or copies made from the original by mechanical process which in themselves ensure the accuracy of the copy, and copies compared with such copies, or copies made from or compared with the original, or counterparts of documents as against the parties, who did not execute them, or oral accounts of the contents of a document given by some person, who had himself seen it. It is nobody's case that Exh.67 is receivable in evidence as secondary evidence. Further, a litigant would be entitled to lead secondary evidence to prove the contents of a document provided the condition-precedents set out in Section 65 of the Evidence Act are FA/1534/2006 24/31 JUDGMENT satisfied. A bare reading of Exh.67 makes it clear that it was addressed by the Deputy Town Planner, Mehsana to Mamlatdar, Radhanpur relating to the land in question and, therefore, even if it is treated to be a public document within the meaning of Section 74 of the Evidence Act, it could not have been received in evidence, unless certified copy of the same as required by Section 76 of the said Act was produced by the claimant. What is relevant to notice is that several other documents were enclosed along with the report dated July 17, 1990, which is produced by the claimant at Exh.67. Those enclosures are not brought on record of the case and only the first page of the report is produced by the claimant on the record of the case. As the full document was not produced on the record of the case, the same could not have been received and read in evidence. Therefore, Exh.67 will have to be excluded from consideration while determining market value of the land acquired in the instant case. FA/1534/2006 25/31 JUDGMENT 12. It may be mentioned that while estimating the market value of the land acquired in the instant case at the rate of Rs.150/- per sq.mt., the Deputy Town Planner, Mehsana took into consideration several factors, such as the measurement of the land, its assessment made under the Land Revenue Code, development