RAMANLAL DEOCHAND SHAHversusTHE STATE OF MAHARASHTRA & ANR.

                    [2013] 7 S.C.R. 631


             RAMANLAL DEOCHAND SHAH                           A
                             v.
        THE STATE OF MAHARASHTRA & ANR.
            (Civil Appeal No. 5160 of 2013)
                       JULY 5, 2013
                                                              B
    [T. S. THAKUR AND GYAN SUDHA MISRA, JJ.]

    LAND ACQUISITION ACT, 1894:

      s.18 ...,. Reference to civil court - Scope of - Held: Ac
reference.to civil court is not in the nature of an appeal where
appellate forum takes a view based on the evidence before
the forum below - In a reference, on the question of adequacy
of compensation determined by the Collector, the burden to
prove that his award does not correctly determine the amount 0
of compensation and that it needs enhancement is upon· the
landowner - To that extent the claimant is in the position· of a
plaintiff before the court - In the absence of any evidence to
prove that the amount awarded by Collector does not
represent the true market value of the property as on the date E
of the preliminary notification, the reference court wifl not be
justified in granting any enhancement - Order of reference
court set aside and matter remittect to it for disposal afresh
after giving opportunity to landowners to lead evidence in
support of their claim - Evidence.
                                                              F
    EVIDENCE:

    Documentary evidence - Held: The documents that
have not been relied upon before the court by defendant
cannot be refe"ed to or treated as evidence without proper G
proof ofcontents thereof.

    Th~ Janc;ts of the appellants in C. A. No. 5160 of 2013


                            631                               H
    632      SUPREME COURT REPORTS             [2013] 7 S.C.R.

A were compulsorily acquired for setting up of a
  Polytechnic Engineering College. The Land Acquisition
  Officer awarded compensation @ Rs. 26.25 sq. mtr. and
  the reference court enhanced in to Rs. 85 pr. sq. mtr.
  However, the High Court set aside the order passed by
B the reference court holding that the el"!hancement was
  not justified in the absence of any evidence to show that
  the market value of the property in question was higher
  than what was assessed by the Special Land Acquisition
  Officer.
c         Allowing the appeals in part, the Court

       HELD: 1.1. A reference to a civil court is not in the
  nature of an appeal where the appellate forum takes a
  view based on the evidence before the forum below. In a
D reference u/s 18 of the Land Acquisition Act, 1894, on the
  question of adequacy of compensation determined by the
  Collector, the burden to prove that his award does not
  correctly determine the amount of compensation is upon
  the landowner. It is for the claimant to prove that the
E amount awarded by the Collector needs enhancement by
  adducing evidence, whether oral or documentary which
  the reference court would evaluate having regai:d to the
  provisions of ss. 23 and 24 of the Land Acquisition Act.
  To that extent the claimant is in the position of a plaintiff
F before the court. In the absence of any evidence to prove
  that the amount of award by the Collector does not
  represent the true market value of the property as on the
  date of the preliminary notification, the reference court
  will not be justified in granting any enhancement. [para
G 7) [637 -8-F]
         Chiman/a/ Hargovinddas v. Spc/. Land Acquisition
    Officer & Anr. 1988 (1) Suppl. SCR 531= (1988) 3 SCC 75;
    Spcl. Land Acquisition Officer & Anr. etc. etc. v. Siddappa
    Omanna Tumari & Ors. etc. 1994 (5) Suppl. SCR 207 =1995
H
   RAMANLAL DEOCHAND SHAH v. STATE OF                 633
          MAHARASHTRA & ANR.
Supp (2) SCC 168; Major Pakhar Singh Atwal and Ors. v. A
State of Punjab and Ors. 1995 (1) SCR 535 = 1995 Supp
(2) sec 401 - relied on.

     1.2. The landowners-appellants in the instant case, did
not lead any evidence in support of their claim before the
                                                             8
reference court. The High Court was, in that view, justified
in holding that the enhancement granted in the absence
of any evidence was unjustified. [para 10] [642..C, E]

     1.3. While it is true that the plaintiff can always place
reliance upon the evidence that may be adduced by a C
defendant in a suit to the extent the same helps the
plaintiff, but tile documents that have not been relied
upon before the court by the defendants cannot be
referred to or treated as evidence without proper proof
of the contents thereof. In the instant case, the D
defendants-respondents did not produce any documents
before the reference court in support of its case. Even if
the documents had been produced by the defendants,·
unless the same were either admitted by the plaintiff or
properly proved and exhibited at the trial, the same could E
not by themselves constitute evidence except where
such documents were public documents admissible by
themselves under any provision. Sale Deeds executed
between third parties do not qualify for such admission.
Merely because some documents were referred to in the F
Draft Award by the Collector, did not make the said
documents admissible by themselves to enable the
claimants to refer to or rely upon the same in support of
a possible enhancement. Therefore, they were not entitled
to claim any enhancement. [para 11, 12] [642-G-H; 643-A- G
B; C-D, F-G]
    2.1. The failure or the omission to lead evidence to
prove the claim appears to be a case of some kind of
misconception about the legal requirement as to evidence
needed to prove cases of enhancement of compensation. H
    634      SUPREME COURT REPORTS                [2013] 7 $.C.R.


A   In that view, there is no reason to deny another
    opportunity to the landowners to prove their cases by
    adducing evidence in support of their claim· for
    enhancement. Since, however, this opportunity is being
    granted ex debito justitiae, it is directed that if the
B   reference court eventually comes to the conclusion that
    a higher amount was due and payable to the appellant-
    owners, such higher amount including solatium due
    thereon would not earn interest for the period between
    the date of the judgment of the reference court and the
c   date of this order. [para 14] [644-F-H; 645-A]

          2.2. The judgments and orders impugned are
  modified to the extent that while the enhancement order
  of the reference court shall stand set aside, the matters
  shall stand remanded to the reference court for disposal
D afresh in accordance with law after giving to the
  landowners opportunity to lead evidence in support of
  their claims for higher compensation. [para 14] [645-A-B]

         CIVIL APPELLATE JURISDICTION : Civil Appeal No.
E    5160 of 2013.
          · From the Judgment and Order dated 14.06.2011 of the
    · High Court of Judicature at Bombay in First Appeal No. 179
      of 1992.

F                                WITH
     C.A. No. 5161 of 2013.
          Siddharth Bhatnagar, T. Mahipal for the Appellant.
         Shankar Chillarge, AGA, Asha Gopalan Nair for the
G    Respondents.
          The Judgment of the Court was delivered by
          T.S. THAKUR, J. 1. Leave granted.
H         2. These appeals arise out of two separate but similar
    RAMANLAL DEOCHAND SHAH v. STATE OF                         635
     MAHARASHTRA & ANR. [T.S. THAKUR, J.]

orders dated 14th June, 2011 and 16th March, 2011 passed A
by the High Court of Judicature at Bombay whereby First
Appeal Nos.179 of 1992 and 751 of 1992 filed by the
respondent-State of Maharashtra have been allowed and the
judgment and order passed by the Reference Court enhancing
the amount of compensation payable to the appellants-land B
owners to Rs.85/- per square meter set aside.

     3. In SLP (C) No.354 of 2012 the appellants prayed for
enhancement of compensation payable towards compulsory
acquisition of plots no.33, 34, 45 and 46 measuring 1366
square meters each, situated at village Saidapur, Taluq-Karad, C
District Satara, Maharashtra. The public purpose underlying the
acquisition was the setting up Of a Polytechnic Engineering
College at Karad. The appellant-land owners claimed
compensation @ Rs.25/- per sq. ft. The Special Land
Acquisition Officer, Satara, however, made an Award dated D
14th March, 1988 determining the compensation@ Rs.26.25
per sq. mtr. only. Dissatisfied with the award made by the
Collector the appellant-land owners got the matter referred to
the Civil Court for determination of the market value of the land
under Section 18 of the Land Acquisition Act besides solatium E
and interest payable on the same. A similar reference was also
made in SLP (C) No.395 of 2012 for plot no. 47 admeasuring
1366 sq. mtrs. of the same village.

    4. The claim made by the appellant-land owners was                 F
contested by the respondent-State giving rise to the following
issues in Reference No.12 of 1988 relevant to SLP (C) No.354
of 2012:

     (i)    Is the claimant entitled to Rs.9,27,064/- in addition
            to Rs.2,31,716/- from the opponent-referee by way G
            of compensation as claimed?

     (ii)   Is the claimant entitled for interest at the rate of 15%
            p.a. on the amount of compensation as claimed?
                                                                       H
    636       SUPREME COURT REPORTS                 (2013] 7 S.C.R.

A         (iii)   Is the claimant entitled to solatium as claimed?

          (iv)    What order?

        5. Similar issues were framed in the connected Reference
    No.4 of 1988 relevant to SLP (C) No.395 of 2012, save and
B   except that the total amount claimed in the same was lower
    having regard to the lesser number of plots acquired in that
    case.

         6. The Reference Court answered the issues in favour of
c the appellants and enhanced the compensation payable to
  them to Rs.85/- per sq. mtr. besides interest at the stipulated
  rates by similar but separate Awards both dated 31st January,
   1991. While doing so, the Reference Court relied entirely upon
  certain observations made by Special Land Acquisition Officer
D and the Draft Award prepared by him. The Reference Court held
  that from the discussion contained in the Draft Award it was
  not clear as to how the Special Land Acquisition Officer had
  awarded compensation @ Rs.26.25 per sq. mtr. Relying upon
  the discussion in the Draft Award and taking advantage of an ·
E apparent conflict between the discussion contained therein and
  the amount actually awarded by the Special Land Acquisition
  Officer the Reference Court enhanced the compensation to
  Rs.85/- per sq. mtr. as already noticed above. The High Court
  has, in the appeals filed by the State Government against the
  enhancement of compensation, reversed the view taken by the
F Reference Court on the ground that the enhancement was not
  justified in the absence of any evidence to show that the market
  value of the property in question was higher than what was
  awarded by the Special Land Acquisition Officer. The High
  Court declared that claimants were in the position of plaintiffs
G and the burden to prove that the amount of compensation
  awarded by the Special Land Acquisition Officer was not
  adequate lay upon them. It was only if that burden was
  satisfactorily discharged by cogent and reliable evidence that
  the Reference Court could direct enhancement. No such
H evidence having been adduced by the landowners, the High ..
     RAMANLAL DEOCHAND SHAH v. STATE OF                          637
      MAHARASHTRA & ANR. [T.S. THAKUR, J.]
Court set aside the order passed by the Refererice Court and             A
answered the reference in the negative thereby dismissing the
claim made by the landowners.

        7, We have heard learned counsel for the parties at some
  length. It is trite that in a reference under Section 18 of the Land   8
 Acquisition Act on the question of adequacy of compensation
  determined by the collector, the burden to prove that the
  collector's award does not correctly determine the amount of
  compensation payable to the landowner is upon the owner
  coricerned. It is for the claimant to prove ttiat the amount           C
   awarded by the Collector needs enhancement, and if so, to
  what extent. The claimant can do so by adducing evidence,
  whether oral or documentary which the Reference Court would
   evaluate having regard to the provisions of Sections 23 and 24
   of the Land Aoquisition Act while determining the compensation
   payable to the owners. To that extent the claimant is in the          D
   position of a plaintiff before the Court. In the apsence of any
   evidence to prove that the amount of award PY the Collector
   does not represent the true market value of the property as on
   the date of the preliminary notification, the Reference Court will
   be helpless and will not be justified in granting any                 E
· enhancement. The Court cannot go by surmises and
   conjectures wtiile answering the reference nor pan it assume
   the role of an Appellate Court and enhance the af'Tlount awarded
   by reappraising the material that was collected and considered·
   by the Collector. What is important to remef'Tlber is that a          F
   reference to a Civil Court is not in the nature of ~n appeal from
   one forum to ttie other where the appellate forum takes a view
   based on the evidence before the forum bek>w. The legal
   position is settled by the decisions of this Court to which we
   may at this stage refer. In Chimanlal Hargovinddas v. Spcl.           G
   Land Acquisition Officer & Anr. (1988) 3 ~CC 751, the
   controversy related to a correct valuation of a piece of land that
  was under acquisition. This Court found that the Reference
  Court had virtually treated the award to be a judgment under
  appeal hence fallen in error on the fundament~I question of the        H
    638         SUPREME COURT REPORTS                 [2013) 7 S.C.R.


A   approach to be adopted while answering a reference. The Court
    observed:

          (1)    A reference under Section 18 of the Land
                 Acquisition Act is not an appeal against the award
                 and the court cannot take into account the material
B
                 relied upon by the Land Acquisition Officer in his
                 award unless the same material is produced and
                 proved before the court.

          (2)    So also the award of the Land Acquisition Officer
c                is not to be treated as a judgment of the trial Court
                 open or exposed to challenge before the court
                 hearing the reference. It is merely an offer made by
                 the Land Acquisition Officer and the material utilised
                 by him for making his valuation cannot be utilised
D                by the court unless produced and proved before It.
                 It is not the function of the court to sit in appeal
                 against the award, appro'le or disapprove its
                 reasoning, or correct its error or affirm, modify or
                 reverse the conclusion reached by the Land
E                Acquisition Officer, as if it were an appellate court.

          (3)    The court has to treat the reference as an original
                 proceeding before it·and determine the market
                 value afresh on the basis of the material produced
                 before it.
F
          (4)    The claimant is in the position of a plaintiff who has
                 to show that the price offered for his land in the
                 award is inadequate on the basis of the materials
                 produced in court. Of course the materials placed
G                and proved by the other side can also be taken into
                 account for this purpose."

                                                (emphasis supplied)

      8. In the Spcl. Land Acquisition Officer & Anr. etc. etc. v.
H Siddappa Omanna Tumari & Ors. etc., 1995 Supp (2) SCC
    RAMANLAL DEOCHAND SHAH v. STATE OF                     639
     MAHARASHTRA & ANR. [T.S. THAKUR, J.]
168, a three Judge Bench was dealing with a case where the A
question that feil for determination was whether it was open to
a Reference Court to determine the amount of compensation
exceeding the amount of compensation determined in the
award without recording a finding on consideration of the
relevant material therein, that the amount of compensation B
determined in the award under ~ection 11 was inadequate.
Answering the question this Court considered the entire
legislative scheme underlying the Act and clarified that a
claimant was in the position of a pl~intiff on whom lay the burden
of proving his case that the compensation awarded by the c
Collector was inadequate. The following passage in this regard
is apposite:

    'When the Collector makes the reference to the Court, he
    is enjoined by Section 19 to state the grounds on which
    he had determined the amount of compensation if the            D
    objection raised as to the acceptance of award of the
    Collector under Section 11 b~ the claimant was as regards
    the amount of compensaiion awarded for the land
    thereunder. The Collector has to state the grounds on which
    he had determined the amount of compensation where the         E
    objection raised by the claimant in his application for
    reference under Section 18 was as to inadequacy of
    compensation allowed by the award under Section 11, as
    required by Sub-section (2) of Section 18 itself. Therefore.
    the legislative scheme contained in Sections 12. 18 and        F
    19 while on the one hand entitles the claimant not to accept
    the award made under Section 11 as to the amount of
    compensation determined as payable for his acauired land
    and seek a reference to the court for determination of the
    amount of compensation payable for his land. on the other      G
    hand requires him to make good before the Court the
    objection raised by him as regards the inadequacy of the
    amount of compensation allowed for his land under the
    award made under Section 11 . with a view to enable the
    Court to determine the amount of compensation exceeding        H
                                                                           ..
    640      SUPREME COURT REPORTS                    (2013] 7 S.C.R.

A         the amount of compensation allowed by the award under
          Section 11, be it by reference to the improbabilities
          inherent in the award itself or on the evidence aliunde
          adduced by him to that effect. That is why. the position
          of a claimant in a reference before the Court. is
          considered to be that of the +plaintiff in a suit
          requiring him to discharge the initial burden of
          proving that the amount of compensation
          determined in the award under Section 11 was
          inadequate. the same having not been determined on the
c         basis of relevant material and by application of correct
          principles of valuation. either with reference to the contents
          of the award itself or with reference to other evidence
          aliunde adduced before the Court. Therefore. if the initial
          burden of proving the amount of compensation allowed in
          the award of the Collector was inadequate. is not
D
          discharged. the award of the Collector which is made final
          and conclusive evidence under Section 12. 'as regards
          matters contained therein will stand unaffected. But if the
          claimant succeeds in proving that the amount determined
          under the award of the Collector was inadequate, the
E         burden of proving the correctness of the award shifts on
          to the Collector who has to adduce sufficient evidence in
          that behalf to sustain such award. Hence, the Court which
          is required to decide the reference made to it under
          Section 18 of the Act, cannot determine the amount of
F         compensation payable to the claimant for his land
          exceeding the amount determined in the award of the
          Collector- made under Section 11 for the same land, unless
          it gets over the finality and conclusive evidentiary value
          attributed to it under Section 12, by recording a finding on
G         consideration of relevant material therein that the amount
          of compensation determined under the award was
          inadequate for the reasons that weighed with it."
                                                 (emphasis supplied)
H
    RAMANLAL DEOCHAND SHAH v. STATE OF                          641
     MAHARASHTRA & ANR. [T.S. THAKUR, J.]
    9. In Major Pakhar Singh Atwal and Ors. v. State of A
Punjab and Ors., 1995 Supp (2) SCC 401 also this Court
reiterated the position that a reference under section 18 of the
Land Acquisition Act is not an appeal against the award of the
LAO. It merely is an offer. The proceeding before the Reference
Court is of such nature that it places the claimant in the position      B
of a plaintiff and the Reference Court is akin to a court of
original jurisdiction. The Court observed:

     " ...... It is now settled law that the award is an offer and
     whatever amount was determined by the Collector is an               C
     offer and binds the Improvement Trust. However, the
     Collector also is required to collect the relevant material
     and award compensation on the basis of settled principles
     of determination of the market valu·e of an acquired land.
     The Improvement Trust, therefore, cannot go behind the
     award made by the Collector. Reference is not an appeal.            D
     It is an original proceeding. It is for the claimants to seek
     the determination of proper compensation by producing
     sale deeds and examining the vendors or the vendees as
     to passing of consideration among them, the nearness of
     the lands sold to the acquired lands, similarly of the lands        E
     sold and acquired and also by adduction of other relevant
     and acceptable evidence. In this case, for the Court under
     Section 18 of the Act, the Tribunal is constituted. Therefore.
     if the claimants intend to seek higher compensation to the
     acquired land. the burden is on them to establish by proof          F
     that the compensation granted by the Land Acquisition
     Officer is inadequate and they are entitled to higher
     compensation. That could be established only by adduction
     of evidence of the comparable sale transactions of the land
     acquired or the lands in the neighbourhood possessed of             G
     similar potentiality or advantages. . . . . . . .. . No doubt. in
     the award itself. the Land Acquisition Officer referred to the
     sale transactions. Since the Land Acquisition Officer is an
     authority under the Act. he collected the evidence to
     determine the compensation as an offer. Though \hat                 H
    642       SUPREME COURT REPORTS                  [2013] 7 S.C.R.


A         award may be a material evidence to be looked into. but
          the sale transactions referred to therein cannot be relied
          upon implicitly, if the party seeking enhancement resists
          the claim by adducing evidence independently before the
          Court or the Tribunal. In this case. since no steps were
B         taken to place the sale transaction referred in the award.
          they cannot be evidence. So they can neither be relied
          upon nor can be looked into as evidence." (emphasis
          supplied)

         10. It is not in dispute that the landowners, appellants
C   before us, did not lead any evidence in support of their claim
    before the Reference Court to prove that the market value of
    the land acquired from the ownership was more than what was
    awarded as compensation by the Collector. Neither the order
    passed by the Reference Court nor that passed by the High
D   Court make any reference to such evidence. Absence of any
    such evidence was, therefore, bound to go against the
    appellants. So long as the appellants failed to discharge the
    burden cast on them, there was no question of the Reference
    Court granting any enhancement. The High Court was, in that
E   view, justified in holding that the enhancement granted in the
    absence of any evidence was unjustified.

           11. It was argued by learned counsel for the appellants that
    although no evidence was adduced by the claimants to prove
F   that the market value of the acquired land was higher than what
    was awarded by the Land Acquisition Collector, the claimants
    could rely on the documents produced by the respondent-State
    before the Collector. If that be so, the Sale Deeds to which the
    Draft Award made a reference, could be referred to and relied
G   upon. There is, in our opinion, no merit in that contention. While
    it is true that the claimant can always place reliance upon the
    evidence that may be adduced by a defendant in a suit to the
    extent the same helps the plaintiff, but the documents that have
     not been relied upon before the Court by the defendants cannot
    be referred to or treated as evidence without proper proof of
H
    RAMANLAL DEOCHAND SHAH v. STATE OF                   643
     MAHARASHTRA & ANR. [T.S. THAKUR, J.]
the contents thereof. In the present case the defendants- A
respondents did not produce any documents before the
Reference Court in support of its case. There was indeed no
occasion for them to do so in the absence of affirmative
evidence from the claimants. We specifically asked learned
counsel for the respondents whether copies of any Sale Deeds B
had been produced by the defendants before the Reference
Court. The answer was in the negative. That being so, it is
difficult to appreciate how the appellants could have referred
to a document not produced or relied upon by the defendants
before the Reference Court. Even if the documents had been      c
 produced by the defendants, unless the same were either
admitted by the plaintiff or properly proved and exhibited at the
trial, the same could not by themselves constitute evidence
except where such documents were public documents
admissible by themselves under any provision. Sale Deeds · D
executed between third parties do not qualify for such
admission. The same had, therefore, to be formally proved
 unless the opposite party admitted the execution and contents,
thereby, in which event no proof may have been necessary for
what is admitted, need not be proved.
                                                                E
      12. Suffice it to say that in the facts and circumstances of
the present case no evidence having been adduced by the
defendants-respondents, whether documentary or otherwise,
there was no question of the appellant relying upon such non-
existent evidence. Merely because some documents were F
referred to in the Draft Award by the Collector, did not make
the said documents admissible by them to enable the plaintiffs
to refer to or rely upon the same in support of a possible
enhancement. If a document upon which the plaintiffs placed
reliance was available, there was no reason why the same G
should not have been produced or relied upon. Inasmuch as no
such attempt was made by the plaintiffs, they were not entitled
to claim any enhancement.

     13. The next question then is whether the appellants-      H
    644      SUPREME COURT REPORTS                   (2013] 7 S.C.R.


A   landowners can be given another opportunity to adduce
    evidence at this stage and if so on what terms. The Reference
    Court, it is noteworthy, was of the opinion that the Special Land
    Acquisition Officer had in the cases at hand relied upon two
    sale deeds to record a finding that the true market price of the
B   land under acquisition was Rs.85/- per square meter. Having
    said that the S.L.A.O had for no reason awarded an amount of
    Rs.26.25 per square meter only. This was according to the
    Reference Court inexplicable. The Reference Court observed:

          "According to the S.L.A.O. the said rate is fair and
c         reasonable but actually he has not awarded the
          compensation accordingly. He has awarded it at the rate.
          of Rs.26.25 ps. per sq. mtrs. This abstruse to understand
          as to how the S.L.A.O has awarded the compensation
          accordingly, when he had already arrived at the conclusion
D         in respect of reasonable rate of the compensation.
          Considering all these things, I hold that the compensation
          ought to have been awarded at least at the rate of Rs.85/
          - per sq. mtrs. for the lands under acquisition. For the same
          reason, I also hold that the claimant is entitled for
E         compensation at the rate of Rs.85/- per sq. mtrs. for the
          lands under acquisition."

        14. The failure or the omission to lead evidence to prove
  the claim appears in the above context to be a case of some
F kind of misconception about the legal requirement as to
  evidence needed to prove cases of enhancement of
  compensation. We do not in that view see any reason to deny
  another opportunity to the landowners to prove their cases by
  adducing evidence in support of their claim for enhancement.
G Since, however, this opportunity is being granted ex debito
  justitiae, we deem it fit to direct that if the Reference Court
  eventually comes to the conclusion that a higher amount was
  due and payable to the appellant-owners, such higher amount
  including solatium due thereon would not earn interest for the
H period between the date of the judgment of the Reference Court
       RAMANLAL DEOCHAND SHAH v. STATE OF                   645
        MAHARASHTRA & ANR. [T.S. THAKUR, J.]
and the date of this order. These appeals are with that direction   A
allowed, the judgments and orders impugned in the same
modified to the extent that while the enhancement order by the
Reference Court shall stand set aside, the matters shall stand
remanded to the Reference Court for a fresh disposal in
accordance with law after giving to the landowners opportunity      B
to lead evidence in support of their claims for higher
compensation. No costs.

R.P.                                   Appeals partly allowed.