THE EXECUTIVE ENGINEER, M.I.W. versus VITTHAL DAMODAR PATIL AND ANR on 1 July 2019

SUPREME COURT REPORTS

[2019] 8 S.C.R.

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THE EXECUTIVE ENGINEER, M.I.W.

v.

VITTHAL DAMODAR PATIL AND ANR.

(Civil Appeal No. 5125 of 2019)

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JULY 01, 2019

[A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]

Land Acquisition Act, 1894 – ss. 4, 18 – Land belonging tothe respondents was acquired for public purpose – Special LandAcquisition Officer passed an award fixing the price at the rate ofCRs.59,800/- per hectare for Jirayat land and Rs.1,500/- per hectarefor pot Kharab land – Possession of the acquired land taken –Respondents, preferred reference u/s.18 of the Act – Decided –Dissatisfied, respondents appealed before the High Court – Partlyallowed, compensation enhanced – On appeal, held: Neither theDReference Court nor the High Court analysed the evidence of thewitness examined by the respondents in its proper perspective,particularly in the context of the issues raised by the appellant abouthis competency, capability and including the procedure followedby him in preparing the valuation report relied by the respondents –Further, the High Court misapplied the decision in Chindha FakiraEPatil – High Court relied upon the subject valuation reportessentially because the same witness had prepared a similar valuationreport and submitted it in some other reference proceeding, whichcame to be accepted by Supreme Court in the case of ChindhaFakira Patil – Said decision is of no avail because every referenceFproceeding must be decided on the basis of the evidence produced–and the issues raised by the parties in the concerned proceeding In the present case, there is no proper analysis of the oral evidenceand moreso the efficacy of lengthy cross-examination of the saidwitness by the appellant in respect of matters such as his eligibility,competence and including credibility, reliability and admissibilityGof the evidence given by him regarding the contents of the valuationreport – Impugned judgment set aside – No opinion expressed onany issues raised in the present appeal – Parties relegated beforethe High Court for consideration of the appeal, afresh, on its ownmerits and in accordance with law.

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Allowing the appeal, the Court

HELD : 1.1 The objection regarding the appeal being barredby limitation, rejected. In the peculiar facts of the present case,the explanation offered by the appellant for condoning the delayin filing of this appeal is a just and plausible explanation. Neitherthe Reference Court nor the High Court analysed the evidenceof Mr. ‘RGC’, witness examined by the claimants in its properperspective and more particularly in the context of the issuesraised by the appellant about his competency, capability andincluding the procedure followed by him in preparing the valuationreport and without providing any proof to justify the opinionformulated by him as regards the valuation of the acquiredproperty. All these points, though raised by the appellant, as ismanifest from the tenor of his cross-examination by the appellant,have not received proper attention of the High Court which wasdealing with the first appeal, both on facts and on law. The HighCourt, misapplied the decision in the case of Chindha FakiraPatil. [Paras 11, 12] [962-G-H; 963-A-C]

1.2 The reported decision adverted to the observation madeby the Reference Court concerning the testimony of Mr. RGC,who is the same witness. That has been noted in paragraph 11 ofthe reported judgment. The Court, no doubt, in paragraph 22 ofthe reported decision, noted that there was no reason to discardthe valuation report of Mr. RGC. However, neither the ReferenceCourt nor Supreme Court in the aforesaid decision was calledupon to consider the question about the eligibility and competencyof the witness examined by the claimants. That issue has beenspecifically raised by the appellant in the present case, relyingon the purported admission of the witness. Whether thiscontention raised by the appellant deserves acceptance orotherwise, is a matter which ought to have been examined atleast by the High Court on its own merits. In other words, thereported decision is of no avail because every referenceproceeding must be decided on the basis of the evidence producedand the issues raised by the parties in the concerned proceeding.Thus, the evidence of the witness examined by the claimants andthe analysis thereof by Supreme Court in some other reference A

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Acase arising from an independent notification issued in earlierpoint of time concerning another village/Taluka cannot be thebasis to mechanically hold that since the valuation report hasbeen prepared by the same witness, it must be accepted as dulyproved in all respects in the reference under consideration,moreso in respect of the justness of the valuation of the subjectBproperty. In the present case, the Reference Court discardedthe valuation report on the finding that the valuer did not explainor bring on record how he made categories of custard apple. TheHigh Court overturned that finding but failed to examine thenuances of the cross-examination of the witness brought onCrecord by the appellant and the purported admission given byhim, including the contention that he had failed to produce anyproof to establish that he was ever approved by the Governmentat the relevant time as an approved valuer and also to justify thevaluation of the subject property. The High Court relied upon the subject valuation report essentially because the same witnessDhad prepared a similar valuation report and submitted it in someother reference proceeding, which came to be accepted bySupreme Court in the case of Chindha Fakira Patil. There is noproper analysis of the oral evidence which has come on record inthe present case and moreso the efficacy of lengthy cross-Eexamination of the said witness by the appellant in respect ofmatters such as his eligibility, competence and includingcredibility, reliability and admissibility of the evidencegiven by him regarding the contents of the valuation report.[Paras 13, 14] [963-F-H; 964-A-G]

F1.3 Accordingly, without expressing any opinion on theissues raised in the present appeal, the impugned judgment isset aside and the parties are relegated before the High Court forconsideration of First Appeal No.2536 of 2015 afresh, on its ownmerits and in accordance with law. All contentions available to both the parties, which can be legitimately pursued in the firstGappeal, are left open. [Paras 15, 16] [965-A-C]

Chindha Fakira Patil (dead) through LRs. v. SpecialLand Acquisition Officer, Jalgaon (2011) 10 SCC 787– referred to.

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THE EXECUTIVE ENGINEER, M.I.W. v. VITTHAL DAMODARPATIL AND ANR.

Case Law Reference

(2011) 10 SCC 787referred toPara 9

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5125of 2019.

From the Judgment and Order dated 26.10.2015 of the High Courtof Judicature at Bombay, Bench at Aurangabad in First Appeal No.2536 of 2015.

P. S. Patwalia, Ravindra Keshaurao Adsure, Ajit Kale, RajeshZalte, Sagar Pahune Patil and Sandeep Sudhakar Deshmukh, Advs. forthe Appellant.

Gopal Balwant Sathe, Prashant S. Kenjal and NishantRamakantrao Katneshwarkar, Advs. for the Respondents.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J.

1. Delay condoned. Leave granted.

2. This appeal takes exception to the judgment and order dated26[th] October, 2015, passed by the High Court of Judicature at Bombay,Bench at Aurangabad, in First Appeal No.2536 of 2015, whereby theHigh Court partly allowed the appeal filed by the respondents-claimantsagainst the decision of the Civil Judge, Senior Division, Jalgaon, in areference filed under Section 18 of the Land Acquisition Act, 1894 (forshort “the Act”), and enhanced the compensation amount for the landsacquired for the purpose of construction of Minor Irrigation Tank atVillage Pimpri, Block Dambhurni, Taluka Pachora, District Jalgaon,Maharashtra.

3. Briefly stated, a notification under Section 4 of the Act waspublished on 9[th] July, 1998, pursuant to which the land belonging to therespondents 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 AcquisitionOfficer 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 for Jirayatland and Rs.1,500/- per hectare for Potkharab land. The possession ofthe acquired land was taken on 14[th] May, 1996. The respondents,however, resorted to a reference under Section 18 of the Act, which A

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Awas decided by the Civil Judge, Senior Division, Jalgaon, vide judgmentand order dated 19[th] September, 2015. Being dissatisfied with the saidjudgment and order, the respondents carried the matter in appeal beforethe High Court which, as aforesaid, came to be partly allowed and resultedin the compensation amount being enhanced.

B4. For considering the issue involved in the present appeal, sufficeit to observe that the respondents-claimants had relied on the ValuationReport dated 10[th] October, 1998, prepared by Mr. Ravindra GhanshyamChaudhari. Besides relying on the said valuation report, the respondentshad examined Mr. Ravindra Ghanshyam Chaudhari as their witness toprove the same. The Reference Court adverted to the said evidenceCand noted as follows:

“11/- There is contention of the claimants that the opponents havenot given the compensation to the fruit bearing trees as per thefruits quality, quantity. To support their contentions, they haveexamined valuer of fruit bearing trees Dr. Ravindra GhanshyamDChaudhari and Dr. Kamalnayan Uttamchand Sanghavi inrespective references. Witness deposed that he is well experiencedin horticulture. They have produced the valuation report of fruitbearing trees to show the income of fruit bearing trees and rate ofthe fruit trees.

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12/- In L.A.R. No.354/03 the claimant submitted that in his landthere were 65 Chiku trees, 1 mango tree and 678 custardapple trees. As per his pleadings, he valued per tree of ChikuRs.1,500/- mango Rs.10,000/- and custard apple Rs.2,000/-. Thevaluer has produced the report and he categorized custard appleFtree in three categories. He has shown the valuation of per fruittree custard apple Rs.7,358/-, Rs.6,889/- and Rs.6,420/-, mangolocal Rs.21,600/- and Chiku Rs.4,648/-.

13/- In L.A.R. No.365/03 the claimants claimed that there were2 mango trees and value of per mango tree was Rs.30,251/-. TheGvaluer has produced the report. He has submitted that mangotrees were local and he has shown the value of each fruit treeand 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 reportof valuer and how the valuer made categories of custard H

apple, nothing is brought on record. The claimant has alsoproduced the market rates of A.P.M.C., Jalgaon to show the ratesin the year 1995-96.”

5. The Reference Court then proceeded to refer to the GovernmentResolution regarding average yield statement of fruit trees (irrigatedfruit crops) and concluded as follows:

“17/- Considering the abovesaid ratio, I fix the rates of fruit bearingtrees as above. The S.L.A.O. has already awarded thecompensation of Rs.9,05,864/- which is more than the rate whichis fixed by this Court. Therefore, the compensation for the custardapple trees need not to be considered.

18/- The advocate for the claimants fairly submitted that they arenot claiming the compensation to the land which is occupied underthe trees. If we calculate the area then land for custard apple isacquired near about 1 hectare and for Chiku 010 Ares land i.e.total land is acquired 1H10Ares. Therefore, compensation to thevacant land is required to be given.”

6. The respondents carried the matter in appeal before the HighCourt and primarily relied on the valuation report and the evidence oftheir witness. That argument has been noted by the High Court inparagraph 2 of the impugned judgment as follows:

“2]….The Reference Court without any reason has not relied onthe said report of the valuer who was an expert. The learnedcounsel submits that no reasons are given while not accepting thevaluation made by expert valuer and also did not give any reasonswhile fixing the valuation of the trees as done by him. The learnedcounsel submits that the same valuers report in another matterwas accepted by Apex Court in the case of Chindha Fakira Patil(D) through L.Rs. V/s Special Land Acquisition Officer, Jalgaonreported in AIR 2012 SC 481. It was same valuer who had valuedin the present matter. There was no impediment to consider thevaluation made by the expert.”

7. The High Court, after considering the rival argument in referenceto the evidence pressed into service by the respondents, concluded asfollows:

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“5] I have considered the submissions canvassed by the learnedcounsel for respective parties. The major issue in the presentappeal is with regard to the valuation of the fruit bearing trees.Number of fruit bearing trees as per award passed by SLAO isnot 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 anexpert. The valuer has proved the report by examininghimself, he has been also cross examined. Perusing thevaluation report it is manifest that while valuing the same,the valuer has taken reference of various literatures suchas that of Dr. Panjabrao Deshmukh Krishi VidyapeethDainandini 1995-96, Fruit Culture in India Book, Averagemarket 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 rejectingthe report submitted by Shri Ravindra Ghanshyam Choudhari whowas examined by the appellants. This witness is a consultant inAgriculture and Horticulture. He personally visited the acquiredland and gave the details of the trees standing on different partsof the land, their present and future age, condition, height, width,spread and annual fruit production capacity. The valuation madeby him was amply supported by the market rates of fruits fixed byAgriculture and Horticulture Department of Government ofMaharashtra. In the cross examination, the witness stood byreports Exhibits 36 to 41 given by him. This being the position, theHigh Court had no reason to overturn the finding recorded by theReference Court on the issue of existence of trees on the acquiredland and their valuation.

8] In the present case also the same valuer Mr. RavindraGhanshyam Choudhari has submitted the report. Thevaluation made by him was supported by market rates ofthe fruits fixed by the APMC. In the cross examination alsosaid report has not been impeached. The said aspect isrequired to be considered. The valuer has categorised theCustard Apple trees into very good, good and averagecondition and has valued the said trees accordingly. Goingby report there was no impediment to accept the said THE EXECUTIVE ENGINEER, M.I.W. v. VITTHAL DAMODARPATIL AND ANR. [A. M. KHANWILKAR, J.]

report. However, with certain deduction as was made byApex Court in the case of Chindha Fakira referred supra,the Apex Court in the said case has deducted 20% of thevaluation made in the report. In the present matter also Ifollow the same course. More particularly in view of thefact that Reference Court has not given any reasons whilevaluing the fruit bearing trees at a lesser rate. He has notconsidered evidence produced on record. Consideringabove, after deducting 20% from the valuation made byvaluer, that is Rs.50,60,255/- less 20%, the same wouldcome to Rs.40,52,204/-. As far as compensation for landsare concerned, it has been observed by the ReferenceCourt that even claimants fairly submitted that they are notclaiming the compensation towards the land which isoccupied under the trees which is to the extent of 1 hectare10 R.”

8. The appellant has assailed this approach of the High Court onthe principal ground that the High Court had failed to consider the entireevidence in its proper perspective. The High Court mechanically acceptedthe subject valuation report merely because another valuation report ofthe same witness came to be accepted by this Court in respect of someother acquisition proceedings. Instead, it ought to have analysed thefactual position emanating from the evidence produced by the parties inthe present case, on its own merits. According to the appellant, the witnessexamined by the respondents-claimants was extensively cross-examinedon various aspects, including regarding his competence and eligibility toissue valuation report as a recognized Government valuer, his experienceand capability to discern the market value of the acquired property andmore so, regarding the faulty procedure followed by him in preparing thevaluation report based on inputs which were not for the relevant periodbut for a subsequent period, such as rate of Agriculture Produce MarketCommittee of the year 2001-2002 and also, lack of proof to justify thevaluation done by him or the accuracy and correctness thereof. Eventhe credibility of the witness has been questioned as being an interestedwitness and having prepared the stated valuation report (providing foran unrealistic and exaggerated value of the acquired property) at thebehest of the respondents-claimants. In that, the report is on the basis of

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Aa visit made by him on 21[st] April,1996, on the request of the respondentseven before possession of the land was taken on 14[th] May, 1996 andmoreso, two years before the issuance of the notification under Section4 of the Act on 9[th] July, 1998. The report was prepared without any priornotice to the Government officials and was replete with inaccurate inputs.It is a self-serving valuation report and ex-facie unreliable. Resultantly,Bthe High Court was obliged to consider all these aspects and notmechanically accept the valuation report relied upon by the respondentsmerely because another valuation report of the same witness commendedto this Court, thereby disregarding the tangible material and evidence onrecord in this case which reinforces that the valuation by the ReferenceCCourt is proper.

9. Per contra, the respondents have relied on the decision of thisCourt in Chindha Fakira Patil (dead) through LRs. Vs. Special LandAcquisition Officer, Jalgaon,[1] and have supported the view taken bythe High Court, being a possible view. According to the respondents, theDvaluation report has been duly proved by the expert witness Mr. RavindraGhanshyam Chaudhari. It is urged that the said witness has beenextensively cross-examined but such cross-examination was not enoughto discard his version, much less the contents of the valuation report,which have been duly proved. It is submitted that the witness possessedthe necessary qualification and was competent to prepare the subjectEvaluation report. The procedure adopted by him has been explained inhis evidence which commended to the High Court and that view being apossible view, needs no interference. It is submitted that this appealmust fail both on the ground of delay as also on merits.

10. We have heard Mr. Sandeep S. Deshmukh, learned counselFfor the appellant and Mr. P.S. Patwalia, learned senior counsel for therespondents-claimants.

11. At the outset, we reject the objection regarding the appealbeing barred by limitation. In our opinion, in the peculiar facts of thepresent case, the explanation offered by the appellant for condoning theGdelay in filing of this appeal is a just and plausible explanation. As regardsthe merits of the controversy, we agree with the appellant that neitherthe Reference Court nor the High Court has analysed the evidence ofMr. Ravindra Ghanshyam Chaudhari, witness examined by the claimantsin its proper perspective and more particularly in the context of the issues H1 (2011) 10 SCC 787

H1 (2011) 10 SCC 787

raised by the appellant about his competency, capability and includingthe procedure followed by him in preparing the valuation report andwithout providing any proof to justify the opinion formulated by him asregards the valuation of the acquired property. All these points, thoughraised by the appellant, as is manifest from the tenor of his cross-examination by the appellant, have not received proper attention of theHigh Court which was dealing with the first appeal, both on facts and onlaw.

12. The High Court, in our opinion, misapplied the decision in thecase of Chindha Fakira Patil (supra). We say so because in that case,the principal argument was regarding discarding of Exhibit-28, concerningthe relied-upon sale instance for the purpose of determining the marketvalue. That can be discerned from paragraph 7 of the reported judgment,which reads as follows:

“7. Shri Pallav Shishodia, learned Senior Counsel appearing forthe appellants assailed the impugned judgment mainly on the groundthat the reasons assigned by the High Court for discarding Exhibit28 are not only irrelevant but are based on pure conjectures. Heemphasised that while determining the amount of compensation,the Reference Court was entitled to take into consideration thesale instance which represented highest value paid for similar landand the High Court committed an error by basing its judgment onthe average value of the sale instances referred to in the awardpassed by the respondent. In support of this argument, ShriShishodia relied upon the judgments of this Court in M.Vijayalakshmamma Rao Bahadur v. Collector of Madras, Stateof Punjab v. Hans Raj and Anjani Molu Dessai v. State ofGoa.”

13. The judgment essentially deals with that contention. Indeed,the reported decision has adverted to the observation made by theReference Court concerning the testimony of Mr. Ravindra GhanshyamChaudhari, who is the same witness. That has been noted in paragraph11 of the reported judgment. The Court, no doubt, in paragraph 22 of thereported decision, has noted that there was no reason to discard thevaluation report of Mr. Ravindra Ghanshyam Chaudhari. However, whatis significant to bear in mind is that neither the Reference Court nor thisCourt in the aforesaid decision was called upon to consider the questionabout the eligibility and competency of the witness examined by the A

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Aclaimants. That issue has been specifically raised by the appellant in thepresent case, relying on the purported admission of the witness. Whetherthis contention raised by the appellant deserves acceptance or otherwise,is a matter which ought to have been examined at least by the HighCourt on its own merits. In other words, the reported decision is of noavail because every reference proceeding must be decided on the basisBof the evidence produced and the issues raised by the parties in theconcerned proceeding. Thus, the evidence of the witness examined bythe claimants and the analysis thereof by this Court in some otherreference case arising from an independent notification issued in earlierpoint of time concerning another village/Taluka cannot be the basis toCmechanically hold that since the valuation report has been prepared bythe same witness, it must be accepted as duly proved in all respects inthe reference under consideration, moreso in respect of the justness ofthe valuation of the subject property.

14. As aforesaid, in the present case, the Reference Court discardedDthe valuation report on the finding that the valuer did not explain or bringon record how he made categories of custard apple. The High Courtoverturned that finding but failed to examine the nuances of the cross-examination of the witness brought on record by the appellant and thepurported admission given by him, including the contention that he hadfailed to produce any proof to establish that he was ever been approvedEby the Government at the relevant time as an approved valuer and alsoto justify the valuation of the subject property. The High Court reliedupon the subject valuation report essentially because the same witnesshad prepared a similar valuation report and submitted it in some otherreference proceeding, which came to be accepted by this Court in theFcase of Chindha Fakira Patil (supra). There is no proper analysis ofthe oral evidence which has come on record in the present case andmoreso the efficacy of lengthy cross-examination of the said witness bythe appellant in respect of matters such as his eligibility, competence andincluding credibility, reliability and admissibility of the evidence given byhim regarding the contents of the valuation report. We do not wish toGanalyse the said evidence and the contentions raised by the appellant inthat regard for the first time in the present appeal. That ought to havebeen done by the High Court which was considering the first appeal,both on facts and on law.

THE EXECUTIVE ENGINEER, M.I.W. v. VITTHAL DAMODARPATIL AND ANR. [A. M. KHANWILKAR, J.]

15. Accordingly, without expressing any opinion on the issues raisedin the present appeal, we allow this appeal, set aside the impugnedjudgment and relegate the parties before the High Court for considerationof First Appeal No.2536 of 2015 afresh, on its own merits and inaccordance with law.

16. We may note that the respondents wanted to rely on newmaterial which, presumably, was not part of the reference proceedings,in support of the argument that the witness examined by them was dulyqualified and eligible to issue such valuation report. However, we makeit clear that even this plea will have to be considered by the High Courton its own merits subject to just exceptions and objections available tothe appellant regarding production of additional evidence, if any. Allcontentions available to both the parties, which can be legitimately pursuedin 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.

Dviya Pandey

Appeal allowed.

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