Western Coalfields Ltd. vs Capt. Shailendra Kumar & Ors.

. Heard Mr. Tushar Darda, learned Counsel for the Appellant, Mr. M. P. Khajanchi, learned Counsel for the Respondent/Cross Objector and Mr. S. C. Joshi, learned AGP for the Respondent/State.

By the present Appeal, the Appellant has challenged the Judgment and Award dated 26/2/2010 passed by the Civil Judge Senior Division, Chandrapur in Land Acquisition Case No. 78/1991, whereby the learned Reference Court has awarded the enhancement in compensation in favour of the Respondent. In Cross Objection the Respondent has challenged the Judgment and Award passed by the Reference Court on the ground that compensation was not awarded as per the oral and documentary proof established by him and further did not award the amount of interest as prayed by him in the matter. Hence, by way of Cross Objection the Respondent/Cross Objector seeks enhancement in the compensation amount.

In short, the subject-matter involved in the present Appeal is as as under :

The Respondent was owner of the tank situated in land bearing Survey No. 231/1, which was acquired by the Appellant/WCL for the purpose of Ghuggus Open Caste Project. The Notification under Section 4 was published on 4/12/1987 and in pursuance of the same, land acquisition proceeding was initiated in the matter. In the said land acquisition proceeding, the learned Land Acquisition Officer has awarded compensation of Rs.1,19,886/- which includes the cost of the land and other statutory benefits thereon.

The Respondent, being dissatisfied with the compensation amount awarded by the Special Land Acquisition Officer, preferred the reference application under Section 18 of the Land Acquisition Act, 1894 before the Civil Judge Senior Division, Chandrapur and specifically prayed that he is entitled for enhancement of compensation on the ground that prior to acquisition, the tank was utilised by the Respondent for breeding and selling fish as well as for Shingada cultivation. The said tank has two portions i.e. Eastern and Western portion. On the date of acquisition of the tank, Western side i.e. half portion of the tank was let out to the Appellant on lease and remaining Eastern side portion of the tank was in possession of the Respondent. As per the Agreement of Lease (Exhibit-172) executed between the Appellant and Respondent dated 20/11/1989, the Respondent is entitled for the compensation by determining the amount of lease and other material factors in the matter.

It is the contention of the Respondent that land was having non-agricultural potentiality, since it was situated adjacent to the locality of Ghuggus village and surrounded by residential houses and commercial premises. According to him, there was tremendous increase in the cost of land in the area of village, where the tank was situated, and the said village was one of the popular village of Chandrapur district which is situated on the bank of Wardha River. The said tank was having advantage of cement factory, lime stone deposits, coal deposits and existing collieries since last 60 years. Hence, considering these factors the market price of the land at the relevant time was Rs.6.50/- to Rs.12/- per square feet. However, these factors were not considered nor the structure which was erected by the Respondent was considered in the matter.

The Appellant/WCL appeared before the Reference Court and contested the reference application by filing written statement. According to the Appellant, Award passed by the Special Land Acquisition Officer in the reference be treated as a written statement before the Reference Court.

In the abovesaid background of the submission of both parties, Respondent had examined himself before the Reference Court at Exhibit-57 and other the witnesses, viz - (i) Rajendrakumar Shailendrakumar Dixit at Exhibit-166; (ii) Sanjay Bhalchandra Sohoni, as an expert at Exhibit-81; (iii) Suresh Parshuram Sonwane, Assistant Fisheries Development Officer at Exhibit-105; and (iv) Madhukar Sambha Kamatwar at Exhibit-124. On the contrary, the Appellant/WCL has examined the Special Land Acquisition Officer namely, Ramesh Dhudku Pawar at Exhibit-144 before the Reference Court.

In pursuance of the issues framed by the learned Reference Court, the Respondent has examined one Sanjay Bhalchandra Sohoni, who has valued the tank on the basis of CSR Report of the year 1996-97 to determine the compensation for construction of the tank. On perusal of the evidence of this witness it is seen that he is qualified as M.Tech (Structure) and was serving as a Lecturer in Chandrapur Engineering College since 1985. According to him, before joining the College he was serving as Junior Engineer with Water Supply Department for the period from 1978 to 1985, where he was doing the job of survey, design, construction of embankment and maintenance of water tanks etc. According to him, he has visited the tank on 6/5/1996 for the purpose of valuation. According to him, the said tank was in a truncated position as some of the area of tank was visible and remaining area was filled with material like bolders etc. The total area of the tank was about 24 acres and the depth of water noted by him was 3.9 mtr. On the basis of this, he has estimated the value of embankment as well as tank. He again reiterated that same was based on CSR Report of 1996-97.

The bare perusal of this evidence shows that he has done the valuation of the tank scientifically, but after 10 years of acquisition of the tank. In the cross-examination this witness has admitted that the Respondent - K. R. Dixit was Principal of the Engineering College, while he was working as a Lecturer. Hence, according to the Appellant, this witness is not a trustworthy to consider his evidence in the matter.

The Respondent has then examined one Suresh Parshuram Sonwane, who was in service at Fisheries Department. At the time of deposition before the Reference Court, he was working as Assistant Fisheries Development Officer and Incharge of District Office. According to him, he works for the promotion of fisheries business and production. On the basis of original bill book regarding sale of fish seed to the Respondent, which he had brought along with him, he has deposed that during the use of the tank, the Respondent used to sale near about one lac in number of fish seed. He has specifically stated that in the area of Ghuggus village, in the tank of 1 hectare area, fish seed stocking ratio was near about 5000 to 7000 of finger lings i.e. size of about 50 mm, and from the same, per hectare production can be obtained about 700 kg. to 1500 kg. per year. To substantiate this submission, he has produced on record the original bills regarding the sale of fish seed to the Respondent in the year 1982. He also stated that in the year 1984 price of the fish was between Rs.8/- to Rs.15/- per kg.

This witness was cross-examined by the Appellant. In the cross-examination certain variations were brought on record. This witness has stated that production ratio mentioned in the receipt was proximate and the said ratio cannot be said to be incorrect. As such, according to him, the ratio of production of the fish varies slightly in every month or year. But the fact remains that this witness has proved that in the year 1982 to 84 there was a production of fish seed and the tank was in use.

The next witness, which was examined by the Respondent is, Nilkanth Haribhau Shende. He was the Secretary of the Chandrapur District Fisheries Department, Chandrapur. He stated that the Federation is dealing with the production of fisheries, its sale and purchase etc. He has stated the approximate price of the fishes at the relevant time and also proved the schedule showing the prices of the fishes vide Exhibit-116. This witness was cross-examined by the Appellant. This witness has categorically stated that the receipts which were produced on record were under his handwriting and the statement made by him was on the basis of record of the Federation.

The Respondent has examined Madhukar Sambha Kamatwar. He was the person who was doing the business as a fisherman. According to him, prior to year 1987 he was doing the business as a fisherman. He categorically stated that he used to collect fishes from the tank and at the relevant time about 40 families were dealing with the same profession. According to him, he along with all associates used to catch one quintal fishes per day and used to pay half of the charges from selling the fishes to the tank owner. He also stated that at the relevant time the rate of fishes was Rs.20/- to Rs.50/- per kg. This witness was also cross-examined by the Appellant. The only thing which was brought in his cross-examination was that he could not point out any document as same was not in his possession about the purchase of fishes from the tank owner, but, other aspects which he has stated on oath were remained unshaken.

In the background of abovesaid evidence, it is the submission of the Respondent before the Reference Court that he had discharged the initial burden to demonstrate the fact that as to how he is entitled for enhancement of compensation.

The Appellant, in view of the fact that they have stated the Award passed by the Special Land Acquisition Officer be treated as their written statement, has examined witness namely, Ramesh Dhudku Pawar at Exhibit-151, who was working from 19/1/2004 as Special Land Acquisition Officer, Chandrapur. This witness has deposed before the Reference Court on the basis of record of the land acquisition proceedings which were available in the office. According to him, the tank was not in use for fishing since 10/10/1985. He further stated that when the Notification under Section 4 was issued on 15/10/1987, it was found that Respondent was not involved in any fishing activity in the tank. Hence, according to this witness, enhancement which is claimed by the Respondent on the ground that the tank was in operation and other relevant factors are totally incorrect.

This witness was cross-examined by the Respondent. In his cross-examination he has admitted that at the time of acquisition of tank one Shri Kalbhor was working as the Land Acquisition Officer. He further admitted that the oral evidence and the documents filed by the Respondent are not part of the land acquisition case. He further stated that he has never personally seen whether the tank was in use or not. The statement made by him on the basis of record made available to him by the office. He further admitted that he has no idea whether valuation of the tank was got done through the Irrigation Department or not. As such, his evidence was recorded only on the basis of record which was available with the office. This witness was not the person who has actually visited the spot and done the inspection and thereafter prepared the Award.

In the background of abovesaid factual position, the learned Reference Court proceeded to decide the reference application. The learned Reference Court though recorded that Sanjay Sohoni, who has done the survey and submitted the valuation report, the Reference Court has not solely relied upon the evidence of the said witness and specifically recorded that on the basis of overall evidence made available on record, he has drawn the conclusion in the matter. As such, the learned Reference Court, by taking into consideration the evidence of all the witnesses recorded before him, decided the reference application and thereby held that Respondent No.1 is entitled for enhancement of compensation.

In the present Appeal, the Judgment of the Reference Court is assailed mainly on the ground that the Reference Court failed to appreciate the findings recorded by the Land Acquisition Officer while determining the value of the tank. According to the Appellant, the then Land Acquisition Officer has considered every aspect of the matter and on the basis of his certificate and evidence, which was made available before him, determined the market value of the tank. According to the Appellant, once the Land Acquisition Officer has done all exercise and properly determined the market value of the tank, the Reference Court has committed an error by relying upon the evidence which was produced by the Appellant in the reference proceeding. According to the Appellant, an afterthought evidence was brought on record, and hence, the same cannot be the reason for Reference Court to enhance the compensation.

In the light of above submissions made by the Appellant, present Respondent No.1 made specific submission that the grounds which Appellant has raised in the present Appeal are totally in contravention of the law laid down by the Hon’ble Supreme Court of India. The Appellant has relied upon the following Judgments :

The Respondent/Cross Objector has also specifically stated that the learned Reference Court while awarding compensation was expected to grant the rate of interest from the date of possession of the tank, however, the same was not granted. According to him, claim for grant of interest can be made at any stage of the proceeding, and therefore, he has made prayer to that effect. In addition to this, he also prayed for enhancement of compensation.

In the light of submissions made by both parties, it will be relevant to refer the cases of Chimanlal Hargovinddas (supra) and Ramanlal Deochand Shah (supra), wherein the Hon’ble Supreme Court of India held that the 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 relied upon by the Land Acquisition Officer in his Award unless the said material is produced and proved before the Court. It is for the Claimant to prove that amount awarded needs enhancement and do so by adducing evidence, either oral or documentary, which the Reference Court would evaluate while determining compensation payable to the owners. As such, in the reference proceeding, initial burden was on the Respondent to prove that the tank was in his possession and established before the Reference Court as to how price offered for his land/tank in the award was inadequate on the basis of material produced on record in Court. As well as make out a case for enhancement of compensation.

As per the law laid down in the case of Karigowda and Others (supra), the Hon’ble Supreme Court has specifically held that once the land owner proved his entitlement to get higher compensation by leading cogent and proper evidence in support of his claim, as primarily the onus is on the Claimant, and once the same has been established, then the burden shifts on the Respondent/State to revert the same. In other words, it is held that it cannot be said that the State has no onus in the reference proceeding. On the other hand, the State has also to discharge the equal burden and establish on record as to how Claimant is not entitled for enhanced compensation by producing cogent evidence in defence.

In the light of abovesaid legal position, it is clear that the Respondent had discharged his initial burden by producing sufficient evidence on record by examining the relevant witnesses. In the circumstances, it was for the Appellant to rebut this burden by producing cogent evidence on record or any contradictory evidence to state that the depositions of these witnesses on certain grounds or by comparative evidence cannot be considered in the matter. However, in the present case, except the Land Acquisition Officer, no other evidence was brought on record by the Respondent.

It is the case of the Appellant that the Special Land Acquisition Officer has considered entire material, and by doing proper survey of the tank, determined the market value. If this is the case of the Appellant, then it was least expected from the Appellant that the person who has done the survey and the basis on which the market value has been determined should have produced and proved before the Reference Court. But, admittedly neither the then Land Acquisition Officer, who has prepared the Award, was examined, nor the basis on which the report was prepared, was proved by producing cogent evidence on record. Hence, in my opinion, the Appellant failed to rebut the evidence, which Respondent No.1 has brought on record.

In the present matter, apart from the evidence, the Reference Court has relied upon the Lease Agreement which was admittedly operating in between the Appellant and Respondent. The bare perusal of the said minutes of the meeting (Exhibit-58) shows that the present Respondent stated in the meeting that he has been investing approximately Rs.15,000/- per year and earning the profit of Rs.20,000/- to Rs.40,000/- out of fishing from this part of the tank apart from Shingada fruit. It is also recorded in the said minutes of the meeting that average of Rs.45,000/- worth of fishes were being sold per year at the rate of Rs.9/- per kg to the retailers i.e. 5000 kgs per year out of five hectares which was the average yield of the tank. Hence, this discussion in the meeting is certainly important factor in the matter, because this document is not disputed by the Appellant rather same belongs to the Appellant/WCL. Therefore, the Reference Court has rightly considered the details of this meeting in the impugned Judgment and thereby held that the Respondent No.1 was entitled for enhancement of compensation.

Perusal of the impugned Judgment in the light of oral and documentary evidence prima facie shows that the Reference Court has certainly evaluated the entire evidence recorded before him and judicially recorded the findings on each and every issue which was raised by the parties before him. In the present Appeal, except the statement that learned Reference Court ought to have considered the proceedings and the documents at the time of passing award, according to me, is not permissible under the settled principles of law. Hence, the findings recorded by the learned Reference Court based on evidence produced before him for enhancement of compensation cannot be said to be incorrect in the matter.

In the background of this factual position, the Cross Objector has supported the finding of Reference Court except on the issue of non-considering the grant of interest from the date of possession of tank. The Respondent in support of submission has relied upon the Judgment of Shree Vijay Cotton & Oil Mills Ltd. (supra), wherein it is held that interest can be claimed at any stage of the proceeding under the provisions of Land Acquisition Act. In view of this settled legal position of law, Appellants did not raise serious objection on the point of interest claimed by the Respondents from the date of possession of tank.

It is brought to my notice from the record that possession of the tank was taken by the Appellant on 20/11/1989 in pursuance of the Notification under Section 4 dated 4/12/1987. Hence, it is the submission of the Cross Objector that modification to the extent of entitlement of the Respondent for interest on the awarded amount is necessary in the impugned Judgment.

In the light of aforesaid reasons, I do not find any merit in the submission of the present Appellant, and hence, I proceed to pass following order.