Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2019
(Arising out of SLP(Civil) No.11433 of 2019)
The Executive Engineer, M.I.W. …..Appellant(s)
:Versus:
Vitthal Damodar Patil and Anr. ....Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. Delay condoned. Leave granted.
2. This appeal takes exception to the judgment and order
th
dated 26 October, 2015, passed by the High Court of
Judicature at Bombay, Bench at Aurangabad, in First Appeal
No.2536 of 2015, whereby the High Court partly allowed the
Signature Not Verified
appeal filed by the respondentsclaimants against the decision
Digitally signed by
ARJUN BISHT
Date: 2019.07.01
16:26:13 IST
Reason:
of the Civil Judge, Senior Division, Jalgaon, in a reference filed
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under Section 18 of the Land Acquisition Act, 1894 (for short
“the Act”), and enhanced the compensation amount for the
lands acquired for the purpose of construction of Minor
Irrigation Tank at Village Pimpri, Block Dambhurni, Taluka
Pachora, District Jalgaon, Maharashtra.
3. Briefly stated, a notification under Section 4 of the Act
th
was published on 9 July, 1998, pursuant to which the land
belonging to the respondents situated at Village Pimpri, Block
Dambhurni, Taluka Pachora, District Jalgaon, Maharashtra,
was acquired for the stated public purpose. After following the
necessary formalities, the Special Land Acquisition Officer
th
passed an award under Section 11 of the Act on 14
November, 2000, fixing the price at the rate of Rs.59,800/ per
hectare for Jirayat land and Rs.1,500/ per hectare for
Potkharab land. The possession of the acquired land was
th
taken on 14 May, 1996. The respondents, however, resorted
to a reference under Section 18 of the Act, which was decided
by the Civil Judge, Senior Division, Jalgaon, vide judgment
th
and order dated 19 September, 2015. Being dissatisfied with
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the said judgment and order, the respondents carried the
matter in appeal before the High Court which, as aforesaid,
came to be partly allowed and resulted in the compensation
amount being enhanced.
For considering the issue involved in the present appeal,
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suffice it to observe that the respondentsclaimants had relied
th
on the Valuation Report dated 10 October, 1998, prepared by
Mr. Ravindra Ghanshyam Chaudhari. Besides relying on the
said valuation report, the respondents had examined Mr.
Ravindra Ghanshyam Chaudhari as their witness to prove the
same. The Reference Court adverted to the said evidence and
noted as follows:
“11/ There is contention of the claimants that the
opponents have not given the compensation to the fruit
bearing trees as per the fruits quality, quantity. To support
their contentions, they have examined valuer of fruit bearing
trees Dr. Ravindra Ghanshyam Chaudhari and Dr.
Kamalnayan Uttamchand Sanghavi in respective references.
Witness deposed that he is well experienced in horticulture.
They have produced the valuation report of fruit bearing
trees to show the income of fruit bearing trees and rate of
the fruit trees.
12/ In L.A.R. No.354/03 the claimant submitted that in
his land there were 65 Chiku trees, 1 mango tree and 678
custard apple trees. As per his pleadings, he valued per tree
of Chiku Rs.1,500/ mango Rs.10,000/ and custard apple
Rs.2,000/. The valuer has produced the report and he
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categorized custard apple tree in three categories. He has
shown the valuation of per fruit tree custard apple
Rs.7,358/, Rs.6,889/ and Rs.6,420/, mango local
Rs.21,600/ and Chiku Rs.4,648/.
13/ In L.A.R. No.365/03 the claimants claimed that there
were 2 mango trees and value of per mango tree was
Rs.30,251/. The valuer has produced the report. He has
submitted that mango trees were local and he has shown the
value of each fruit tree and mango local Rs.30,250/.
14/ If we perused the pleadings of the claimant in
L.A.R. No.354/03 then value of each tree is contrary to
the report of valuer and how the valuer made categories
of custard apple, nothing is brought on record. The
claimant has also produced the market rates of A.P.M.C.,
Jalgaon to show the rates in the year 199596.”
(emphasis supplied)
The Reference Court then proceeded to refer to the
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Government Resolution regarding average yield statement of
fruit trees (irrigated fruit crops) and concluded as follows:
“17/Considering the abovesaid ratio, I fix the rates of fruit
bearing trees as above. The S.L.A.O. has already awarded
the compensation of Rs.9,05,864/ which is more than the
rate which is fixed by this Court. Therefore, the
compensation for the custard apple trees need not to be
considered.
18/ The advocate for the claimants fairly submitted that
they are not claiming the compensation to the land which is
occupied under the trees. If we calculate the area then land
for custard apple is acquired near about 1 hectare and for
Chiku 010 Ares land i.e. total land is acquired 1H10Ares.
Therefore, compensation to the vacant land is required to be
given.”
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6. The respondents carried the matter in appeal before the
High Court and primarily relied on the valuation report and
the evidence of their witness. That argument has been noted
by the High Court in paragraph 2 of the impugned judgment
as follows:
“2]….The Reference Court without any reason has not relied
on the said report of the valuer who was an expert. The
learned counsel submits that no reasons are given while not
accepting the valuation made by expert valuer and also did
not give any reasons while fixing the valuation of the trees as
done by him. The learned counsel submits that the same
valuers report in another matter was accepted by Apex Court
in the case of Chindha Fakira Patil (D) through L.Rs. V/s
Special Land Acquisition Officer, Jalgaon reported in AIR
2012 SC 481. It was same valuer who had valued in the
present matter. There was no impediment to consider the
valuation made by the expert.”
7. The High Court, after considering the rival argument in
reference to the evidence pressed into service by the
respondents, concluded as follows:
“5] I have considered the submissions canvassed by the
learned counsel for respective parties. The major issue in the
present appeal is with regard to the valuation of the fruit
bearing trees. Number of fruit bearing trees as per award
passed by SLAO is not disputed. The number of trees
existing is a matter of record, and none of the parties has
disputed the same.
6] The valuer has given the report. The said valuer is
an expert. The valuer has proved the report by
examining himself, he has been also cross examined.
Perusing the valuation report it is manifest that while
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valuing the same, the valuer has taken reference of
various literatures such as that of Dr. Panjabrao
Deshmukh Krishi Vidyapeeth Dainandini 199596, Fruit
Culture in India Book, Average market rates of fruits
taken from APMC Jalgaon.
7] The Apex Court in the case of Chindha Fakira referred
supra, has observed that the High Court committed error by
rejecting the report submitted by Shri Ravindra Ghanshyam
Choudhari who was examined by the appellants. This
witness is a consultant in Agriculture and Horticulture. He
personally visited the acquired land and gave the details of
the trees standing on different parts of the land, their
present and future age, condition, height, width, spread and
annual fruit production capacity. The valuation made by him
was amply supported by the market rates of fruits fixed by
Agriculture and Horticulture Department of Government of
Maharashtra. In the cross examination, the witness stood by
reports Exhibits 36 to 41 given by him. This being the
position, the High Court had no reason to overturn the
finding recorded by the Reference Court on the issue of
existence of trees on the acquired land and their valuation.
8] In the present case also the same valuer Mr.
Ravindra Ghanshyam Choudhari has submitted the
report. The valuation made by him was supported by
market rates of the fruits fixed by the APMC. In the
cross examination also said report has not been
impeached. The said aspect is required to be considered.
The valuer has categorised the Custard Apple trees into
very good, good and average condition and has valued
the said trees accordingly. Going by report there was no
impediment to accept the said report. However, with
certain deduction as was made by Apex Court in the case
of Chindha Fakira referred supra, the Apex Court in the
said case has deducted 20% of the valuation made in the
report. In the present matter also I follow the same
course. More particularly in view of the fact that
Reference Court has not given any reasons while valuing
the fruit bearing trees at a lesser rate. He has not
considered evidence produced on record. Considering
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above, after deducting 20% from the valuation made by
valuer, that is Rs.50,60,255/ less 20%, the same would
come to Rs.40,52,204/. As far as compensation for
lands are concerned, it has been observed by the
Reference Court that even claimants fairly submitted
that they are not claiming the compensation towards the
land which is occupied under the trees which is to the
extent of 1 hectare 10 R. ”
(emphasis supplied)
8. The appellant has assailed this approach of the High
Court on the principal ground that the High Court had failed
to consider the entire evidence in its proper perspective. The
High Court mechanically accepted the subject valuation report
merely because another valuation report of the same witness
came to be accepted by this Court in respect of some other
acquisition proceedings. Instead, it ought to have analysed the
factual position emanating from the evidence produced by the
parties in the present case, on its own merits. According to the
appellant, the witness examined by the respondentsclaimants
was extensively crossexamined on various aspects, including
regarding his competence and eligibility to issue valuation
report as a recognized Government valuer, his experience and
capability to discern the market value of the acquired property
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and more so, regarding the faulty procedure followed by him in
preparing the valuation report based on inputs which were not
for the relevant period but for a subsequent period, such as
rate of Agriculture Produce Market Committee of the year
20012002 and also, lack of proof to justify the valuation done
by him or the accuracy and correctness thereof. Even the
credibility of the witness has been questioned as being an
interested witness and having prepared the stated valuation
report (providing for an unrealistic and exaggerated value of
the acquired property) at the behest of the respondents
claimants. In that, the report is on the basis of a visit made by
st
him on 21 April,1996, on the request of the respondents even
th
before possession of the land was taken on 14 May, 1996 and
moreso, two years before the issuance of the notification
th
under Section 4 of the Act on 9 July, 1998. The report was
prepared without any prior notice to the Government officials
and was replete with inaccurate inputs. It is a selfserving
valuation report and exfacie unreliable. Resultantly, the High
Court was obliged to consider all these aspects and not
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mechanically accept the valuation report relied upon by the
respondents merely because another valuation report of the
same witness commended to this Court, thereby disregarding
the tangible material and evidence on record in this case
which reinforces that the valuation by the Reference Court is
proper.
9. Per contra, the respondents have relied on the decision of
this Court in
Chindha Fakira Patil (dead) through LRs. Vs.
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Special Land Acquisition Officer, Jalgaon, and have
supported the view taken by the High Court, being a possible
view. According to the respondents, the valuation report has
been duly proved by the expert witness Mr. Ravindra
Ghanshyam Chaudhari. It is urged that the said witness has
been extensively crossexamined but such crossexamination
was not enough to discard his version, much less the contents
of the valuation report, which have been duly proved. It is
submitted that the witness possessed the necessary
qualification and was competent to prepare the subject
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(2011) 10 SCC 787
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valuation report. The procedure adopted by him has been
explained in his evidence which commended to the High Court
and that view being a possible view, needs no interference. It is
submitted that this appeal must fail both on the ground of
delay as also on merits.
10. We have heard Mr. Sandeep S. Deshmukh, learned
counsel for the appellant and Mr. P.S. Patwalia, learned senior
counsel for the respondentsclaimants.
At the outset, we reject the objection regarding the appeal
11.
being barred by limitation. In our opinion, in the peculiar
facts of the present case, the explanation offered by the
appellant for condoning the delay in filing of this appeal is a
just and plausible explanation. As regards the merits of the
controversy, we agree with the appellant that neither the
Reference Court nor the High Court has analysed the evidence
of Mr. Ravindra Ghanshyam Chaudhari, witness examined by
the claimants in its proper perspective and more particularly
in the context of the issues raised by the appellant about his
competency, capability and including the procedure followed
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by him in preparing the valuation report and without
providing any proof to justify the opinion formulated by him as
regards the valuation of the acquired property. All these
points, though raised by the appellant, as is manifest from the
tenor of his crossexamination by the appellant, have not
received proper attention of the High Court which was dealing
with the first appeal, both on facts and on law.
12. The High Court, in our opinion, misapplied the decision
in the case of (supra). We say so
Chindha Fakira Patil
because in that case, the principal argument was regarding
discarding of Exhibit28, concerning the reliedupon sale
instance for the purpose of determining the market value. That
can be discerned from paragraph 7 of the reported judgment,
which reads as follows:
“7. Shri Pallav Shishodia, learned Senior Counsel appearing
for the appellants assailed the impugned judgment mainly
on the ground that the reasons assigned by the High Court
for discarding Exhibit 28 are not only irrelevant but are
based on pure conjectures. He emphasised that while
determining the amount of compensation, the Reference
Court was entitled to take into consideration the sale
instance which represented highest value paid for similar
land and the High Court committed an error by basing its
judgment on the average value of the sale instances referred
to in the award passed by the respondent. In support of this
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argument, Shri Shishodia relied upon the judgments of this
Court in M. Vijayalakshmamma Rao Bahadur v. Collector of
Madras , State of Punjab v. Hans Raj and Anjani Molu Dessai
v. State of Goa .”
13. The judgment essentially deals with that contention.
Indeed, the reported decision has adverted to the observation
made by the Reference Court concerning the testimony of Mr.
Ravindra Ghanshyam Chaudhari, who is the same witness.
That has been noted in paragraph 11 of the reported
judgment. The Court, no doubt, in paragraph 22 of the
reported decision, has noted that there was no reason to
discard the valuation report of Mr. Ravindra Ghanshyam
Chaudhari. However, what is significant to bear in mind is
that neither the Reference Court nor this Court in the
aforesaid decision was called upon to consider the question
about the eligibility and competency of the witness examined
by the claimants. That issue has been specifically raised by
the appellant in the present case, relying on the purported
admission of the witness. Whether this contention raised by
the appellant deserves acceptance or otherwise, is a matter
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which ought to have been examined at least by the High Court
on its own merits. In other words, the reported decision is of
no avail because every reference proceeding must be decided
on the basis of the evidence produced and the issues raised by
the parties in the concerned proceeding. Thus, the evidence of
the witness examined by the claimants and the analysis
thereof by this Court in some other reference case arising from
an independent notification issued in earlier point of time
concerning another village/Taluka cannot be the basis to
mechanically hold that since the valuation report has been
prepared by the same witness, it must be accepted as duly
proved in all respects in the reference under consideration,
moreso in respect of the justness of the valuation of the
subject property.
14. As aforesaid, in the present case, the Reference Court
discarded the valuation report on the finding that the valuer
did not explain or bring on record how he made categories of
custard apple. The High Court overturned that finding but
failed to examine the nuances of the crossexamination of the
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witness brought on record by the appellant and the purported
admission given by him, including the contention that he had
failed to produce any proof to establish that he was ever been
approved by the Government at the relevant time as an
approved valuer and also to justify the valuation of the subject
property. The High Court relied upon the subject valuation
report essentially because the same witness had prepared a
similar valuation report and submitted it in some other
reference proceeding, which came to be accepted by this Court
in the case of (supra). There is no
Chindha Fakira Patil
proper analysis of the oral evidence which has come on record
in the present case and moreso the efficacy of lengthy cross
examination of the said witness by the appellant in respect of
matters such as his eligibility, competence and including
credibility, reliability and admissibility of the evidence given by
him regarding the contents of the valuation report. We do not
wish to analyse the said evidence and the contentions raised
by the appellant in that regard for the first time in the present
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appeal. That ought to have been done by the High Court which
was considering the first appeal, both on facts and on law.
15. Accordingly, without expressing any opinion on the
issues raised in the present appeal, we allow this appeal, set
aside the impugned judgment and relegate the parties before
the High Court for consideration of First Appeal No.2536 of
2015 afresh, on its own merits and in accordance with law.
16. We may note that the respondents wanted to rely on new
material which, presumably, was not part of the reference
proceedings, in support of the argument that the witness
examined by them was duly qualified and eligible to issue
such valuation report. However, we make it clear that even
this plea will have to be considered by the High Court on its
own merits subject to just exceptions and objections available
to the appellant regarding production of additional evidence, if
any. All contentions available to both the parties, which can be
legitimately pursued in the first appeal, are left open.
17. Appeal is allowed in the above terms. No order as to
costs. All pending applications are disposed of in terms of this
order.
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…………………………..….J.
(A.M. Khanwilkar)
…………………………..….J.
(Ajay Rastogi)
New Delhi;
July 01, 2019.