THE EXECUTIVE ENGINEER, M.I.W.versusVITTHAL DAMODAR PATIL AND ANR

954                       [2019]
               SUPREME COURT     8 S.C.R. 954
                              REPORTS                       [2019] 8 S.C.R.


A                   THE EXECUTIVE ENGINEER, M.I.W.
                                        v.
                  VITTHAL DAMODAR PATIL AND ANR.
                         (Civil Appeal No. 5125 of 2019)
B                                JULY 01, 2019
            [A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]
             Land Acquisition Act, 1894 – ss. 4, 18 – Land belonging to
      the respondents was acquired for public purpose – Special Land
      Acquisition Officer passed an award fixing the price at the rate of
C
      Rs.59,800/- per hectare for Jirayat land and Rs.1,500/- per hectare
      for 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 – Partly
      allowed, compensation enhanced – On appeal, held: Neither the
D     Reference Court nor the High Court analysed the evidence of the
      witness examined by the respondents in its proper perspective,
      particularly in the context of the issues raised by the appellant about
      his competency, capability and including the procedure followed
      by him in preparing the valuation report relied by the respondents –
      Further, the High Court misapplied the decision in Chindha Fakira
E
      Patil – 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 Supreme Court in the case of Chindha
      Fakira Patil – Said decision is of no avail because every reference
F     proceeding 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 evidence
      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
G
      of the evidence given by him regarding the contents of the valuation
      report – Impugned judgment set aside – No opinion expressed on
      any issues raised in the present appeal – Parties relegated before
      the High Court for consideration of the appeal, afresh, on its own
      merits and in accordance with law.
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                                       954
THE EXECUTIVE ENGINEER, M.I.W. v. VITTHAL DAMODAR                       955
                 PATIL AND ANR.

      Allowing the appeal, the Court                                    A
       HELD : 1.1 The objection regarding the appeal being barred
by limitation, rejected. 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. Neither
the Reference Court nor the High Court analysed the evidence            B
of Mr. ‘RGC’, 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 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              C
property. All these points, though raised by the appellant, as is
manifest from the tenor of 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. The High
Court, misapplied the decision in the case of Chindha Fakira            D
Patil. [Paras 11, 12] [962-G-H; 963-A-C]
      1.2 The reported decision adverted to the observation made
by the Reference Court concerning the testimony of Mr. RGC,
who is the same witness. That has been noted in paragraph 11 of
the reported judgment. The Court, no doubt, in paragraph 22 of          E
the reported decision, noted that there was no reason to discard
the valuation report of Mr. RGC. However, neither the Reference
Court nor Supreme 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       F
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 by the High Court on its own merits. In other words, the
reported decision is of no avail because every reference                G
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 Supreme Court in some other reference

                                                                        H
956           SUPREME COURT REPORTS                      [2019] 8 S.C.R.


A     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
B
      property. 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 cross-examination of the witness brought on
C     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 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
D
      had prepared a similar valuation report and submitted it in some
      other reference proceeding, which came to be accepted by
      Supreme Court in the case of Chindha Fakira Patil. There is no
      proper analysis of the oral evidence which has come on record in
      the present case and moreso the efficacy of lengthy cross-
E     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.
      [Paras 13, 14] [963-F-H; 964-A-G]
F            1.3 Accordingly, without expressing any opinion on the
      issues raised in the present appeal, the impugned judgment is
      set aside and the parties are relegated before the High Court for
      consideration of First Appeal No.2536 of 2015 afresh, on its own
      merits and in accordance with law. All contentions available to
      both the parties, which can be legitimately pursued in the first
G     appeal, are left open. [Paras 15, 16] [965-A-C]
            Chindha Fakira Patil (dead) through LRs. v. Special
            Land Acquisition Officer, Jalgaon (2011) 10 SCC 787
            – referred to.

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THE EXECUTIVE ENGINEER, M.I.W. v. VITTHAL DAMODAR                            957
                 PATIL AND ANR.

                        Case Law Reference                                   A
(2011) 10 SCC 787                 referred to              Para 9
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5125
of 2019.
      From the Judgment and Order dated 26.10.2015 of the High Court         B
of Judicature at Bombay, Bench at Aurangabad in First Appeal No.
2536 of 2015.
       P. S. Patwalia, Ravindra Keshaurao Adsure, Ajit Kale, Rajesh
Zalte, Sagar Pahune Patil and Sandeep Sudhakar Deshmukh, Advs. for
the Appellant.                                                               C
    Gopal Balwant Sathe, Prashant S. Kenjal and Nishant
Ramakantrao Katneshwarkar, Advs. for the Respondents.
      The Judgment of the Court was delivered by
      A. M. KHANWILKAR, J.
                                                                             D
      1. Delay condoned. Leave granted.
       2. This appeal takes exception to the judgment and order dated
26th 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      E
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 Jalgaon,
Maharashtra.                                                                 F

       3. Briefly stated, a notification under Section 4 of the Act was
published on 9th 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      G
Officer passed an award under Section 11 of the Act on 14th 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 taken on 14 th May, 1996. The respondents,
however, resorted to a reference under Section 18 of the Act, which          H
958             SUPREME COURT REPORTS                           [2019] 8 S.C.R.


A     was decided by the Civil Judge, Senior Division, Jalgaon, vide judgment
      and order dated 19th 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.
B             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 10th 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
C     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
D           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.
E           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 categorized custard apple
F           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
G           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
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THE EXECUTIVE ENGINEER, M.I.W. v. VITTHAL DAMODAR                                959
       PATIL AND ANR. [A. M. KHANWILKAR, J.]

      apple, nothing is brought on record. The claimant has also                 A
      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           B
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        C
      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.             D
      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 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                 E
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          F
      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
                                                                                 G
      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:
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960      SUPREME COURT REPORTS                          [2019] 8 S.C.R.


A     “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.
B
      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 valuing the same,
      the valuer has taken reference of various literatures such
C     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 rejecting
D     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,
E     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
F     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
G     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
H     by report there was no impediment to accept the said
THE EXECUTIVE ENGINEER, M.I.W. v. VITTHAL DAMODAR                              961
       PATIL AND ANR. [A. M. KHANWILKAR, J.]

      report. However, with certain deduction as was made by                   A
      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
                                                                               B
      valuing the fruit bearing trees at a lesser rate. He has not
      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 would
      come to Rs.40,52,204/-. As far as compensation for lands
      are concerned, it has been observed by the Reference                     C
      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)      D
       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          E
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 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       F
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         G
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
                                                                               H
962               SUPREME COURT REPORTS                          [2019] 8 S.C.R.


A     a visit made by him on 21st April,1996, on the request of the respondents
      even before possession of the land was taken on 14th May, 1996 and
      moreso, two years before the issuance of the notification under Section
      4 of the Act on 9th 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,
B
      the High Court was obliged to consider all these aspects 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
C     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
D     valuation report has been duly proved by the expert witness Mr. Ravindra
      Ghanshyam Chaudhari. It is urged that the said witness has been
      extensively cross-examined but such cross-examination 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
E     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
F     for the appellant and Mr. P.S. Patwalia, learned senior counsel for the
      respondents-claimants.
              11. At the outset, we reject the objection regarding the appeal
      being barred by limitation. In our opinion, in the peculiar facts of the
      present case, the explanation offered by the appellant for condoning the
G     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
H     1
          (2011) 10 SCC 787
THE EXECUTIVE ENGINEER, M.I.W. v. VITTHAL DAMODAR                             963
       PATIL AND ANR. [A. M. KHANWILKAR, J.]

raised by the appellant about his competency, capability and including        A
the procedure followed 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 cross-
examination by the appellant, have not received proper attention of the
                                                                              B
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       C
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      D
      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         E
      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 in M.
      Vijayalakshmamma Rao Bahadur v. Collector of Madras, State
      of Punjab v. Hans Raj and Anjani Molu Dessai v. State of
      Goa.”                                                                   F

       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      G
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           H
964             SUPREME COURT REPORTS                            [2019] 8 S.C.R.


A     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 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
B
      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
C     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
D     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 cross-
      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
E     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
F     case of Chindha Fakira Patil (supra). There is no 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
G     analyse the said evidence and the contentions raised by the appellant in
      that regard for the first time in the present appeal. That ought to have
      been done by the High Court which was considering the first appeal,
      both on facts and on law.

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THE EXECUTIVE ENGINEER, M.I.W. v. VITTHAL DAMODAR                               965
       PATIL AND ANR. [A. M. KHANWILKAR, J.]

      15. Accordingly, without expressing any opinion on the issues raised      A
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               B
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          C
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.
                                                                                D
Dviya Pandey                                                  Appeal allowed.




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