The Executive Engineer, M.I.W. v. Vitthal Damodar Patil and Anr
A. M. KHANWILKAR, J.
1. Delay condoned. Leave granted.
2. This appeal takes exception to the judgment and order date d
26 th 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 appeal filed by the respondents-claimants
against the decision of the Civil Judge, Senior Division, Jalgaon, in a
reference filed 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 Ja lgaon,
Maharashtra.
3. Briefly stated, a notification under Section 4 of the Act w as
published on 9 th 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 passed an award under Section 11 of the Act on 14 th November,
2000, fixing the price at the rate of Rs.59,800/- per hectare fo r Jirayat
land and Rs.1,500/- per hectare for Potkharab land. The possession of
the acquired land was taken on 14 th May, 1996. The respondents,
however, resorted to a reference under Section 18 of the Act, which
THE EXECUTIVE ENGINEER, M.I.W. v. VITTHAL DAMODAR
PATIL AND ANR.
was decided by the Civil Judge, Senior Division, Jalgaon, vide judgment
and order dated 19 th September, 2015. Being dissatisfied with 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.
4. For considering the issue involved in the present appeal, suffice
it to observe that the respondents-claimants had relied on the Valuation
Report dated 10 th 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 cus tard
apple trees. As per his pleadings, he valued per tree of C hiku
Rs.1,500/- mango Rs.10,000/- and custard apple Rs.2,000/-. The
valuer has produced the report and he 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 t ree
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 cus tard
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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 1995-96.”
(emphasis supplied)
5. The Reference Court then proceeded to refer to the 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 th e
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.”
6. The respondents carried the matter in appeal before the H igh
Court and primarily relied on the valuation report and the evi dence 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 lea rned
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 m atter
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 conside r 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, con cluded as
follows:
THE EXECUTIVE ENGINEER, M.I.W. v. VITTHAL DAMODAR
PATIL AND ANR. [A. M. KHANWILKAR, J.]
“5] I have considered the submissions canvassed by the learne d
counsel for respective parties. The major issue in the present
appeal is with regard to the valuation of the fruit beari ng trees.
Number of fruit bearing trees as per award passed by SL AO 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 examini ng
himself, he has been also cross examined. Perusing the
valuation report it is manifest that while valuing the same,
the valuer has taken reference of various literatures su ch
as that of Dr. Panjabrao Deshmukh Krishi Vidyapeeth
Dainandini 1995-96, 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 rejecti ng
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 Governme nt of
Maharashtra. In the cross examination, the witness s tood 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 averag e
condition and has valued the said trees accordingly. Goi ng
by report there was no impediment to accept the sai d
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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 th e
fact that Reference Court has not given any reasons while
valuing the fruit bearing trees at a lesser rate. He has n ot
considered evidence produced on record. Considering
above, after deducting 20% from the valuation made by
valuer, that is Rs.50,60,255/- less 20%, the same wo uld
come to Rs.40,52,204/-. As far as compensation for la nds
are concerned, it has been observed by the Referenc e
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 he ctare
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 analyse d 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 respondents-claimants was extensively cross-examined
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 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 2001-2002 and also, lack of proof to justify the
valuation done by him or the accuracy and correctness thereof. Eve n
the credibility of the witness has been questioned as being an interested
witness and having prepared the stated valuation report (pro viding for
an unrealistic and exaggerated value of the acquired proper ty) at the
behest of the respondents-claimants. In that, the report is on the basis of
THE EXECUTIVE ENGINEER, M.I.W. v. VITTHAL DAMODAR
PATIL AND ANR. [A. M. KHANWILKAR, J.]
a visit made by him on 21 st April,1996, on the request of the respondents
even before possession of the land was taken on 14 th May, 1996 and
moreso, two years before the issuance of the notification under Section
4 of the Act on 9 th July, 1998. The report was prepared without any prior
notice to the Government officials and was replete with inaccurate inputs.
It is a self-serving valuation report and ex-facie unreliable. Resultantly,
the High Court was obliged to consider all these as pects and not
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. Special Land
Acquisition Officer, Jalgaon, 1 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 ha s been
extensively cross-examined but such cross-examination was not enough
to discard his version, much less the contents of the valuati on report,
which have been duly proved. It is submitted that the witness possessed
the necessary qualification and was competent to prepare the subject
valuation report. The procedure adopted by him has been explaine d 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 couns el for the
respondents-claimants.
11. At the outset, we reject the objection regarding the appea l
being barred by limitation. In our opinion, in the peculiar fac ts 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 ev idence of
Mr. Ravindra Ghanshyam Chaudhari, witness examined by the claimants
in its proper perspective and more particularly in the context of the issues
1 (2011) 10 SCC 787
963
raised by the appellant about his competency, capability and including
the procedure followed by him in preparing the valuation repo rt 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 o f his cross-
examination 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 Chindha Fakira Patil (supra). We say so because in that case,
the principal argument was regarding discarding of Exhibit-28, concerning
the relied-upon 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 t he
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 argument, Shri
Shishodia relied upon the judgments of this Court i n 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 m ade 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 discar d 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
THE EXECUTIVE ENGINEER, M.I.W. v. VITTHAL DAMODAR
PATIL AND ANR. [A. M. KHANWILKAR, J.]
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 which ought to have been examined at least b y 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 t o
mechanically hold that since the valuation report has been prepared by
the same witness, it must be accepted as duly proved in all r espects in
the reference under consideration, moreso in respect of the justn ess 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 Cour t
overturned that finding but failed to examine the nuances of the cros s-
examination of the 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 C ourt relied
upon the subject valuation report essentially because the same witness
had prepared a similar valuation report and submitted it in s ome other
reference proceeding, which came to be accepted by this Court in the
case of Chindha Fakira Patil (supra). There is no proper analysis of
the oral evidence which has come on record in the present c ase 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 no t wish to
analyse the said evidence and the contentions raised by the appellant in
that regard for the first time in the present appeal. Th at ought to have
been done by the High Court which was considering the first a ppeal,
both on facts and on law.
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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 meri ts 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 cos ts.
All pending applications are disposed of in terms of this order.
Dviya Pandey Appeal allowed.
THE EXECUTIVE ENGINEER, M.I.W. v. VITTHAL DAMODAR
PATIL AND ANR. [A. M. KHANWILKAR, J.]