VITHALBHAI LALLUBHAI PATEL Vs. ADDITIONAL SPECIAL LAND ACQUISITION OFFICER
LAWS(GJH)-1966-7-7
HIGH COURT OF GUJARAT
Decided on July 27,1966

VITHALBHAI LALLUBHAI PATEL Appellant
VERSUS
ADDITIONAL SPECIAL LAND ACQUISITION OFFICER Respondents

JUDGEMENT

A.S.SARELA, N.G.SHELAT - (1.) Mr. Batubhai Desai the learned advocate for the appellants tried to invite our attention to an unreported judgment of this Court in First Appeals Nos. 423 of 1960 and 424 of 1960 to show that by that judgment the compensation in respect of S. No. 127 which is just in the vicinity of S. No. 329 was awarded at the rate of Rs. 3-80 P. per sq. yard of land and that on that basis the compensation should have been awarded to the appellant in respect of this land S. No. 399 and it would be all the more so according to him as this S. No. 329 was notified for acquisition about two years after the notification in respect of that land S. No. 127 and several other lands viz. on 19-4-56 when by reason of considerable development due to the acquisition of lands by the railway authorities in 1954 the value of the lands in this area had increased considerably. That land bearing S. No 127 was also of the ownership of this very Shamalbhai the claimant-appellant in the present case. To this an objection was raised by the learned Advocate General saying that it cannot form part of the record for the simple reason that the judgment of the trial Court given in those compensation cases was never produced in the trial Court and that the other side was consequently at a disadvantage inasmuch as it was not able to meet with any of the considerations which weighed with the Court in giving the compensation as it did in respect of S. No. 127 and some other survey numbers referred to therein. In case that judgment were on record the learned Advocate General said that he would have no objection to have the judgment of the appeal Court brought on reword for obviously the judgment of the trial Court merged with one of the appellate Court and that the final judgment will prevail. In this connection a further attempt was made by Mr. Desai to refer to the other unreported judgment in First Appeal No. 545 of 1960 of this Court delivered on 23rd February 1965 wherein this very appellant was also an appellant in some of those appeals with a view to show that there were other lands in the neighbourhood of the lands in question and the compensation awarded in respect of them and in particular in respect of S. Nos. 269 269 131 and 132 was confirmed. In other words according to him the compensation awarded in respect of the first two S. Nos. 269 and 269A was at the rate of Rs. 4/per sq. yard and that in respect of the other two survey Nos. 131 and 132 compensation was awarded at the rate of Rs. 180/per guntha. The attempt was to show that those rates can well stand as to help in arriving at the correct market value of the lands under acquisition and that the appellant should be awarded compensation on that basis. They were also acquired under a notification of 1954 as against the one in 1956 in respect of these lands. This was also objected to by the learned Advocate General on the same ground and in his view no such judgments can be looked into except in respect of any principles laid down by this Court.
(2.) Now the market value of the land acquired as required under sec. 23(1) of the Land Acquisition Act (to be hereinafter referred to as the Act) has to be determined as at the date when the notification under sec. 4 sub-sec. (1) was issued and notified. Various methods for finding out the market value of the property under acquisition have been laid down in various decided cases and they can well be summed up as done by Their Lordships of the Supreme Court in a case of The Special Land Acquisition Officer Bangalore v. T. Adinarayan Setty A.I.R. 1959 Supreme Court 429. The methods of valuation as observed therein are (1) opinion of expert (2) the price paid within a reasonable time in bonafide transaction of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantage and (3) a number of years purchase of the actual or immediately prospective profits of the lands acquired. In the present case the claimants have chosen to examine Shri Manilal as an expert witness and that evidence much though has not been relied upon by Mr. Desai the learned advocate for the appellants shall be considered hereafter when dealing with the evidence relating to the market value of the property. With regard to the second method the claimants have led no evidence whatever by producing any instance of sale having taken place within a reasonable time of the issue of notification for acquisition of lands in the nearby area except one relating to S. No. 332/1 said to be a lease-cum-sale of 13th November 1954. We shall deal with that part of the evidence separately for apart from the question as to whether that instance helps us in determining the market value of the land it has been challenged as being hardly a bona fide or genuine transaction. As to the third method for evaluating the land on the basis of a number of years purchase of the actual or immediately prospective profits etc. no attempt is made in that direction by producing any evidence whatever. The Sands were in fact agricultural lands till the date of acquisition and yet no attempt is made to show the income that those lands yielded to the claimants in the present case. The attempt on the part of Mr. Desai thus was to show by reference to the two judgments of this Court to show that some of the lands which were in the vicinity of the lands acquired were valued at higher rates than those fixed by the trial Court and the judgments which lay down the market value of those lands can serve as good instances for ascertaining the market value of the lands in question. In this connection a reference can well be made to the judgment of the Supreme Court in Civil Appeal No. 176 of 1962 in Khaja Faizuddin (dead) by his legal Representatives v. State of Hyderabad (Now Andra Pradesh) decided on 10 April 1963. A copy thereof has been placed before us by the learned Advocate General. His Lordship Justice Subba Rao as he then was after referring to the different methods of ascertaining the market value of the property similar to those referred to here above has observed as under If a sale deed of a land comparable in time and quality with the land acquired can be of evidentiary value; equally clearly the awards of a Court of comparable dates in respect of such lands will also be of valuable assistance in assessing the market value for by the award the Court fixes the market value of such a land having regard to the same principles which should guide a Court in fixing the value of the land acquired. If at all such an award would be better evidence as it would have the merit of an objective ascertainment of the market value on the basis of relevant evidence. The Judicial Committee in Secretary of State v. I.G.S. No. Co. gave its approval to the reliance placed by the High Court on earlier awards in ascertaining compensation payable to the land acquired. It is also true that just like sales of comparable lands the awards to be of any use must also relate to comparable lands that is to say the awards should be in respect of lands similarly situated as the land acquired and in respect of period in and about the same time as of the notification issued in respect of the land acquired. In view of these observations it is obvious that an award of a Court fixing the market value of comparable lands both in time and quality would serve as a better piece of evidence and can well be looked at. 10 But the difficulty in the case of the claimants is that no such attempt was made to produce the awards given by the learned Joint Judge in respect of those survey numbers which are sought to be relied upon as comparable lands with the lands under acquisition. It was said that in First Appeal No. 541 of 1969 the learned Advocate General had agreed to have the judgment of the High Court in some other appeals in evidence and that there is no reason he should not agree to have the judgment in First Appeal No. 423 of 1960 on record. It was further said that the judgment of the High Court was delivered after the decision of the trial Court and consequently it was not possible to produce the judgment of the High Court in the trial Court. Since it was the final judgment which matters and it being of the highest Court in the State they should be looked at for the purpose of finding out whether those lands were comparable lands with lands under acquisition and if so on the basis of compensation awarded for those lands it should be awarded for the lands in this appeal. With regard to the first part of the argument the learned Advocate General drew our attention to the circumstances in which the copy of the judgment of the High Court was allowed to go on record as set out at page 8 of the judgment in that appeal. As stated therein the main evidence on which the claimants relied was Ex. 61 which is a certified copy of a judgment delivered by the same learned Judge in Compensation Case No. 56 of 1956....Now in Compensation Case No 56 of 1956 the learned Joint Judge was called upon to determine the valuations of survey Nos. 126 and 127 of Acher and of survey Nos. 268 268 267 270 and 271 of Ranip. Now the learned Judge in the present case accepted the valuations arrived at by him in regard to the aforesaid survey numbers as the basis for comparing the values of the aforesaid survey numbers and bearing in mind the differences in the survey numbers to be valued in Compensation Case No. 56 of 1956 he fixed the land values as already stated. The learned Advocates on both the sides admit that the judgment of which Ex. 61 is the copy in Compensation Case No. 56 of 1956 was the subject-matter of an appeal to this Court in First Appeal No. 423 of 1960. That appeal and a number of other appeals were disposed off by the judgment delivered by this Court in First Appeal No. 423 of 1960 on 13th November 1961. The learned Advocates on both the sides admit that therefore the judgment delivered by this Court having displaced the judgment of the learned Judge in Compensation Case No. 56 of 1956 was more relevant than the latter judgment and that that judgment should be regarded as a piece of evidence in the present group of cases. Therefore a printed copy of that judgment has been brought on record of the main appeal No. 569 of 1960 with the consent of both the sides These observations clearly explain the circumstances in which the judgment of this Court was allowed to be taken on record. The observations further make it clear that a certified copy of the trial Court was already on record and when that piece of evidence was before the Court one can easily assume that the parties knew the type of evidence required to be led in the Court below. No such attempt is even made to produce the judgment of the trial Court from which the First Appeal No. 423 of 1960 and other appeals arose. The fact however remains that the other side at any rate had not the advantage to meet the case which the appellants in this Court want to advance by a different method viz. of producing the judgment of the High Court in those appeals.
(3.) It was said that the claimant Shamalbhai has referred to in his evidence about the compensation awarded to him in respect of S. No. 127 as also some others on the same being based on the award given by the learned Joint Judge. The final judgment given by the High Court in those matters can therefore well be admitted in evidence for that supersedes the award given by the trial Court. The judgment in appeal no doubt supersedes or one can say that the judgment of the trial Court merges in that of the appellate Court. But so far as the amount awarded by the trial Court which has come to be varied or confirmed in respect of other numbers may not be in any way enough for the purpose which Mr. Desai wants us to namely to increase the compensation in respect of the lands in question on the basis of comparing the prices fixed in respect of those lands. All that one can in such circumstances say is that what the two Courts held can well be taken note of. But what is essential is to know the circumstances and the type of evidence duly led before the Courts on the basis of which the market value was fixed in respect of those Sands. It is essential to know how that award was made in respect of those lands and it would depend on as to whether the award in respect of lands is so comparable both in point of time and its quality vis--vis the lands in question. In that respect nothing has been said by Shamalbhai and no attempt is sought to be made for producing the judgment of the trial Court from which those appeals arose and the judgments of the High Court are sought to be produced before us. Even no application has been made for having such judgments brought on record for making out the points as the learned advocate for the appellants has sought to urge. The evidence of Shamalbhai can therefore take us no further in absence of the judgment of the trial Court on record. Unless that judgment or award of the trial Court was brought on record in the trial Court so as to enable the other side to meet by leading any evidence if necessary the judgment of the appellate Court cannot be admitted in cases of this kind. The mere fact that it is a judgment of the High Court it can have no special significance when it is sought to be relied upon as a piece of evidence in respect of certain lands considered and decision arrived at on facts of that case. It can be looked at if any principle were laid down and not for any other purpose in the circumstances of the case. That can neither be allowed under Order 41 rue 27 of the Civil Procedure Code nor it appears fair to us to feel justified in exercising our inherent powers under sec. 151 of the Civil Procedure Code. Parties have to be careful and vigilant in having their entire evidence on record and if they fail to do so it would be hardly the function of the Court to allow any such lacuna to be filled in so as to justify an argument by reference to such evidence which is sought to be placed before us. We are therefore of the view that no such additional evidence can be allowed to be produced much less looked into in the circumstances of this case. Award modified.;


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