Swamidasan and Others vs The Exe. Engineer and Another

K.K. Usha, J.—Claimants in L.A.R. 187/97 on the file of the Court of Subordinate Judge, Thalassery, are the Appellants. They challenge the judgment of the reference Court on the ground that the enhancement in land value granted was not sufficient. An extent of 0.0382 hectares (9.50 cents) of garden land belonging to the Appellants, was acquired for realignment of N.H. 17. Under the award, Rs. 72,801 was granted for 9 1/2 cents of acquired land and Rs. 99,839 for the building thereon. Claimants contended that they are entitled to land value at the rate of Rs. 30,000 per cent and building should have been valued at Rs. 2,25,000. The basic document relied on in the award is one dated 18th September 1993 relating to 0.0405 hectares of land. After deducting value of improvements on the land, land value was. fixed at Rs. 11,40,500 per hectare.

1st claimant was examined on behalf of the claimants as A.W. 1. He deposed that the acquired land lies abutting the National Highway. Near to the acquired land, there are various institutions like F.C. 1. godown, Canara Bank, Sreekoormba temple, Talkies, etc. Muzhappilangad beach resort situates about 1 km. away from the acquired land. In Ext. C-1 report, Commissioner had stated that the basic land situates about 1 km. away from the acquired land and it is not similar to the acquired land. Registration copy of the document No. 439/94 was marked as Ext. A-1 in which the land value shown was at the rate of Rs. 15,000 percent. In Ext. A-2 registration copy of Anr. document No. 172/96, land value was shown as Rs. 25,000 percent. It is on this basis, enhancement of land value was sought.

On behalf of the Respondents, Revenue Inspector was examined as R.W. 1. Copy of the basic document was marked as Ext. B-1. Revenue Inspector stated that the basic document is similar to the acquired land and the land value given at the rate of Rs. 4,617 percent is fair and reasonable.

On the basis of the evidence in the case, reference Court came to the conclusion that basic land is situated in less advantageous position and therefore it is not similar to the land acquired. But the Court was not prepared to accept the Commissioner''s opinion that centage value would come between Rs. 40,000 and Rs. 45,000 as it was found that this opinion was formed on the basis of the local enquiry and not on the basis of any documentary evidence. The Court further found that the acquisition admittedly being in 1993. Exts. A-1 and A-2 which are post acquisition documents cannot be relied on. Apart from the above, the claimant did not examine the parties to Exts, A-1 and A-2 and therefore the sale consideration referred therein cannot be taken as reliable evidence regarding the value of the land acquired. But, at the same time, the Court found that the land value fixed in the award at the rate of Rs. 4,617 is not fair and reasonable in view of the importance and potentiality of the acquired land which lies adjacent to the National Highway. The Court therefore enhanced the land value and fixed the same at Rs. 7,500 percent. No enhancement was granted regarding value of the structure for the reason that there was no evidence available.

The main contention raised by the learned Counsel for the Appellants before us is that the reference Court has erred in not taking into consideration the land value shown in Exts. A-1 and A-2. It was contended by the learned Counsel that once the documents were marked without any objection, thereafter, the reference Court could not have refused to examine the contents of the document, in order to adopt the sale value referred therein. In support of the above contention, learned Counsel relied on a Bench decision of this Court in State of Kerala v. Saidali 1999 (2) KLT 617. Learned Judges have taken the view that when the registered documents are admitted in evidence, it cannot be insisted that parties to those documents should be examined to prove the transaction in spite of admissibility of the documents u/s 65(7) of the Evidence Act read with Section 57(5) of the Registration Act. At the same time, when the parties to the suit dispute genuineness and truth of the contents of such document, it may be a case for examination of the parties to the documents or other persons connected therewith, if the marking of documents is objected for that reason. It was therefore held that when the documents are marked through the claimant and if no objection was raised for marking the documents by the Government Pleader, then reliance could be placed on the contents of the documents by the Court.

Another Bench of this Court has taken a different view in State of Kerala v. Karthiyani 1999 (2) KLT 679. After examining the scope of Section 51A of the Land Acquisition Act, it was observed by the learned Judges that Section 51A of the Land Acquisition Act only dispenses with the requirement of production of the original sale deed and permits the Court to receive certified copy of the document. But, merely because certified copy was produced before the Court it does not mean that contents of the above documents are proved before the Court without examining the necessary witnesses. The best evidence to prove the contents of the document is by examining the vendor or the vendee. Sometimes, the scribe or even the witnesses could be examined, if they are familiar with the transaction. In the facts of that case, learned Judges found that document was proved through an attestor of the document who was also the father of the vendee and therefore it can be taken that he was familiar with the nature of the transaction and the property. The Bench had placed reliance on the following decisions of the Supreme Court:

Inder Singh and Others Vs. Union of India (UOI) and Others, , State of U.P. and another Vs. Rajendra Singh, , G. Narayan Rao Vs. Land Acquisition Officer, and Special Deputy Collector and another etc. Vs. Kurra Sambasiva Rao and others, etc., .

In Inder Singh and Others Vs. Union of India (UOI) and Others, . Supreme Court has observed as follows:

Under Section 51-A of the Act as amended in 1984, the certified copies have been permitted to be brought on record as evidence of sale transaction recorded therein. The examination of the witnesses is to find that the sale transactions are bona fide and genuine transactions between willing vendor and willing vendee as reasonable prudent men and the price mentioned is not throw away price at arms length or depressed sales or brought into existence to inflate market value of the lands under acquisition and the sales are accommodating one. Equally it must be brought on record the comparative nature of the lands covered under the sale deed and the acquired lands whether adjacent or actual distance or possessed of similar advantage and whether transactions themselves are genuine and bona fide transactions.

In State of U.P. and another Vs. Rajendra Singh, , it was observed as follows:

Admittedly, in this case, though reference to four sales transactions has been made by the reference Court, neither the vendee nor the vendor was examined nor was it established that the sale consideration which passed there under is true and the prices of which the sales came to be executed were real ones between willing vendor and willing vendee. Equally, burden is on the claimant to establish that the lands relating to the sales transactions and the lands under acquisition are possessed of same value, nature of the lands are same and capable of fetching the same price, and so also other situations as comparable features. Unfortunately, neither the reference Court nor the High Court has looked into this legal aspect of the matter and proceeded on the terms of those sale deeds.

Similar view was taken in G. Narayan Rao Vs. Land Acquisition Officer, . Where it was observed as follows:

It is seen that, admittedly, neither the vendor nor the vendee of the sale deeds, Exts. A-22 and A-22 was examined. It is settled law from the decisions of this Court starting from Collector v. Dr. Hari Sing Thakur and that of the A.P. High Court in Tahsildar, Land Acquisition v. P. Narasimha Rao that either the vendor or the vendee should be examined in proof of the documents to establish passing of the real consideration under the documents, the nature of the respective lands and whether the documents are genuine documents etc. It is for the Court to consider all the relevant facts to accept the correctness of the sale deeds and then consider whether they should form the basis to determine compensation. In the absence of proof of the above facts there would be no evidence for the Court to place reliance on untested documents.

The same position was affirmed by the Supreme Court in the later decision, Special Deputy Collector and another etc. Vs. Kurra Sambasiva Rao and others, etc., as follows:

In the absence of such a sale deed relating to the acquired land the sale transactions relating to the neighbouring lands in the vicinity of the acquired land. In that case the features required to be present are: it must be within a reasonable time of the date of the notification; it must be a bona fide transaction; it should be a sale of land similar to the land acquired or land adjacent to the land acquired; and it should possess similar advantageous features. These are relevant features to be taken into consideration to prove the market value of the acquired land as on the date of the notification published u/s 4(1) of the Act. This would be established by examining either the vendor or the vendee. If it is proved that they are not available, the scribe of the document may also be examined in that behalf. Section 51A of the Act only dispenses with the production of the original sale deed and directs to receive certified copy for the reason that parties to the sale transaction would be reluctant to part with the original sale deed since acquisition proceedings would take long time before award of the compensation attains finality and in the meanwhile the owner of the sale deed is precluded from using the same for other purposes vis-a-vis this land. The marking of the certified copy per se is not admissible in evidence unless it is duly proved and the witnesses, viz., the vendor or the vendee are examined. This principle has been repeated in a catena of subsequent decisions of this Court.

There is yet Anr. decision of the Supreme Court reported as P. Ram Reddy and Others Vs. Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad and Others, . In the above case, the question arose whether the basic documents relied on by Land Acquisition Officer while passing the award, could be looked into by the reference Court without the vendor or vendee being examined. While considering the above issue, Supreme Court examined the scope of Section 51A of the Land Acquisition Act and clearly held that unless the genuineness and truth of its contents are proved by examining witness, the Court is not bound to take into consideration the contents of the documents. But, in the case of the documents relied on by the Land Acquisition Officer or the Collector in the award, it was held that reliance could be placed on them, without examining the witnesses associated with the documents, since the award had been passed after the Land Acquisition Officer having perused those documents and that even without those documents, the Land Acquisition Officer can sustain the award.

In 1999 (2) KLT 617, unfortunately, the above-mentioned decisions of the Supreme Court were not brought to the notice of the learned Judges. The judgment of the Supreme Court in State of Bihar Vs. Madheshwar Prasad, relied on by the Bench does not take a different view from the earlier decisions referred above. On the other hand, we find that the observations in paragraph 3 of the judgment is to the effect that without examining the vendor or vendee or other witnesses who have knowledge about the contents of the document, no reliance could be placed on the value shown in the document. Relevant portion of paragraph 3 reads as follows:

Unfortunately, neither the vendor nor the vendee has been examined in proof of passing of the consideration under the sale deed etc. Only a clerk of the Sub Registrar was called as witness to prove the sale deeds which are the certified copies of the sale deeds. No doubt, u/s 51-A of the Act, the certified copy of the sale deed is admissible as evidence to get over the difficulties of the owner of the document would not produce the original title deeds. The clerk of the Sub Registrar has proved that material as secondary evidence but other factors aliunde have to be established that the sale deed offers comparable value for determining the compensation at Rs. 45,000 per acre.

The above would show that the Court has taken the view that evidence of the Clerk of the Sub Registrar is not sufficient to prove the contents of the document, namely, comparable value for determining the compensation. It is also to be noted that in paragraph 4 of the same judgment, reference is made to P. Ram Reddy and Others Vs. Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad and Others, , and it is observed that Supreme Court has elaborately considered and laid down the principle of law in a catena of decisions, latest being P. Ram Reddy and Others Vs. Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad and Others, .

The discussion above would show that there is conflict between two Bench decisions, 1999 (2) KLT 617 and 1999 (2) KLT 679. But, we do not think it necessary for us to refer the matter to a larger Bench since the decision in 1999 (2) KLT 617 was rendered without noting the authoritative pronouncement of the Supreme Court and therefore the decision should be taken as one rendered per incuriam.

We therefore find that the reference Court has correctly refused to rely on Exts. A-1 and A-2, since, neither the vendor nor vendee nor any other witness having knowledge about the nature of the transaction and the property covered by the document, was examined.

We do not find any merit in the contentions raised regarding the claim for enhancement of compensation in respect of the building. Reference Court has correctly rejected the claim, in the absence of any evidence to support the claim.

In the result, the appeal fails and it stands dismissed.