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Judgment
Mohit S. Shah, J.—This appeal is directed against the judgment and award dated 16.8.1995 passed by the learned Second Extra Assistant Judge, Baroda in Land Reference Case No. 277 of 1988. The lands in question were acquired for Sukhi Irrigation Project. The notification u/s 4 of the Land Acquisition Act, 1894 for the lands in question in Taluka and District Baroda were published on 1.5.1979, 19.2.1981, 2.4.1981, 27.10.1983 and 7.6.1984 for different villages as indicated in Paragraph 2 of the judgment under appeal. The appellant herein was granted lease of the concerned Survey Numbers on different dates for different periods by the State Government for excavating graphite minerals therefrom. As far as survey Nos. 92, 97 and 98 of Village Muthai are concerned, according to the appellant, the land belonged to him and the other lands were of the ownership of the State Government granted on lease to the appellant as indicated above. Such lease was granted on 5.12.1966 for the period which was renewed on 5.11.1976 with further extension of 20 years. Lease of some other lands commenced on 3.3.1969 and was for the period of 20 years. Accordingly, the lease of some other lands commenced from 10.4.1970 and was for a period of 20 years.
During the course of land acquisition proceedings, the Special Land Acquisition Officer by his interim award made payment of Rs. 6,28,080/- to the appellant for the damages and compensation of the standing trees, sheds and loss of profit. The possession of the land in question was taken over on 29.6.1981 and final award was made on 22.9.1986. However, as per the said final award, Special Land Acquisition Officer awarded in all Rs. 2,38,502.26 ps. for compensation and damages and ordered for recovery of Rs. 3,89,577.74 ps. Being dissatisfied with the award, the appellant requested the Land Acquisition Officer to refer the case u/s 18 of the Act. Accordingly, the reference was made to the District Court at Baroda. The learned Second Extra Assistant Judge, Baroda by the impugned judgment and award dated 16.8.1995 did not enhance the amount of compensation determined by the Land Acquisition Officer at Rs. 2,38,502.26 ps., but enhanced the rate of interest from 4% to 9% per annum on the principal amount for the first year from the date of taking possession (i.e. 29.6.1981 and thereafter at the rate of 15% per annum till the payment). The learned Judge also directed payment of proportionate cost of the proceedings to the appellant - original claimant. It is against the aforesaid judgment and award that the appellant - original claimant has moved this Court.
Ms Avani Mehta, learned advocate for the appellant has submitted that the Reference Court grossly erred in not at all enhancing the amount of compensation even though the Special Land Acquisition Officer himself had made the interim award of Rs. 6,28,080/- for damages and compensation for the standing trees, sheds and loss of profit.
Ms Mehta has further submitted that the appellant had right to excavate graphite minerals in large areas and that the remaining lease period was 16 years for survey No. 194 of Village Muthai, 9 years for survey No. 91 of Village Muthai and 8 years for survey No. 20 of Village Chaina. Total area of lease of the above-referred land was 15 Acres and 20 Ares. Similarly, for different survey numbers admeasuring 7 Hectors and 42 Ares of Village Muthai, the lease was to expire on 9.4.1990 and therefore, the appellant lost the right to carry on the business in respect of the said lands for 9 years. Ms Mehta has further submitted that the Reference Court erred in not properly appreciating the oral and documentary evidence on record. She submitted that the appellant had also produced a report of the expert indicating the large quantities of graphite embedded in the lands in question which were available to the appellant for excavation. As per the report of Mr DS Patel, Geologist at Exh.41/4, the total quantity of graphite in the lands in question was about 10 to 12 lacs tonnes and therefore, the total value of the graphite lying in the mines was worth about Rs. 3 crores considering the price of raw materials at the rate of Rs. 25/- to Rs. 30/- per tonne. The price of beneficial graphite was Rs. 800/- to Rs. 1,500/- per tonne and if the said quantity of 10 to 12 lacs tonnes of graphite was sold in the beneficial form, the price of the said graphite would come to about Rs. 4 crores. Ms Mehta also submitted that the appellant had produced bills at Exh. 34 to 36 to prove the sell of beneficial graphite at the rates indicated above in support of the appellant''s claim of compensation of Rs. 36 lacs for damages. Reliance is also placed on the evidence of expert - Mr Dahyabhai Patel at Exh.41 and its report at Exh.41/A and also the report of the Geologist at Exh.44.
On the other hand, Mr Nikunt Raval, learned AGP has opposed the appeal and supported the judgment of the Reference Court. Mr Raval has submitted that as pointed out by the learned Government Pleader before the Reference Court, the appellant had not laid any evidence in support of his case that the appellant used to sell the entire raw graphite only after its process of refined beneficial treatment. Mr Raval also submitted that as recorded by the Trial Court, in his cross-examination at Exh.18 in Para 12, the appellant had stated that he used to earn Rs. 40,000/- to Rs. 50,000/- in early years and he was earning Rs. 1 to 1.5 lacs in the year in which the land was acquired. The appellant must have maintained books of accounts and he could have easily produced the same in support of his case, but the applicant did not produce such books of accounts and therefore, adverse inference was rightly drawn by the Reference Court.
Having heard the learned advocates for the parties, we have given anxious consideration to the rival submissions. It appears that the appellant mainly relied upon the opinion of the Geologist Mr Dahyabhai Patel who had indicated in his report at Exh.44 that there was about 17.70 lacs metric tonnes of reserved quantity of graphite in three mines which had been taken on lease by the appellant and the balance period of lease was about 9 to 11 years as indicated in the earlier part of this judgment. As per the said report, the contents of graphite were 12% to 15% in one metric tonne and market value of raw graphite was admitted as Rs. 30 per metric tonne. It appears that the entire case of the appellant was on the basis that the appellant was refining the raw graphite and was selling the refined graphite for which the market rate was Rs. 900/- per tonne and in the above report at Exh.44 itself, the figures about production of raw graphites from 1971 to June 1981 in mine No. 1 (5790 metric tonne) and in mine No. 2 (1890 metric tonne) and in mine No. 3 (1210 metric tonne) of raw graphites were mentioned. The Reference Court was, therefore, justified in not assessing and awarding compensation on the basis as if the appellant was refining the entire raw graphite and selling in the market at the rate of Rs. 900/- per metric tonne.
Even if the Reference Court was justified in not awarding compensation of Rs. 34,00,000/- to the appellant on the above basis, the fact remains that the Special Land Acquisition Officer himself had made the interim award and given interim compensation of Rs. 6,28,080/- to the appellant for compensation of the standing trees, sheds and loss of profit. We see no reason why such interim award cannot be looked into for the purpose of finding out the basis on which the interim compensation was paid to the appellant. The Reference Court has taken a view that such award is not admissible in evidence. Even if such interim award may not be admissible in evidence in the case of any other claimant when the interim compensation was already paid to the appellant and the appellant had produced the report of Geologist indicating substantial quantity of reserved graphite in the lands in question which the appellant had taken on lease and for which the balance period of lease ranged from 9 years to 11 years as indicated in the earlier portion of this judgment, we are of the view that in the facts and circumstances of the case, the Reference Court ought to have enhanced the amount of compensation to the amount of Rs. 6,28,080/-. The Reference Court rightly enhanced the rate of interest from 4% to 9% for the first year from the date of taking possession and thereafter at the rate of 15% per annum till the date of payment of compensation.
In view of the above discussion, we partly allow this appeal enhancing the amount of compensation from Rs. 2,38,502.26 ps. awarded by the Special Land Acquisition Officer and confirmed by the Reference Court to Rs. 6,28,080/- with the additional compensation u/s 23(1)(A) and Section 23(2) of the Land Acquisition Act, 1894 along with interest at the rate of 9% per annum on the compensation amount from 29.6.1981 to 19.4.1982 and thereafter at the rate of 15% per annum till the date of payment of compensation. The amounts already paid to the appellant whether by way of compensation or by way of interest shall be adjusted against the aforesaid amount and the balance amount, if any, shall be paid to the appellant within two months from the date of receipt of this judgment.
The appeal is accordingly partly allowed to the aforesaid extent with proportionate costs of the proceedings before the Reference Court as well as before this Court.