Upon hearing the learned advocates for the parties and on perusal of the records, the first point which arises for our consideration is as to whether the impugned award discloses correct procedure having been followed in evaluating the market value of the land in the facts and circumstances of the case? The Reference Court, after referring to the decision of the Apex Court in The Special Land Acquisition Officer, Bangalore v. T. Adinarayan Setty and
after noting the methodology prescribed under the said decision of the Apex Court for the purpose of ascertaining the market value of the land acquired under the said Act, has proceeded to observe that in order to ascertain the market value, it is necessary to adopt one or more of those methods in land acquisition proceedings. In our considered opinion, this observation by the Reference Court apparently discloses misconstruction of the ruling of the Apex Court in the matter of evaluating the market value of the land acquired under the said Act. The methodology laid down under the said ruling does not give an option to the Reference Court to choose one or more methods as sought to be observed by the Reference Court but ruling clearly lays down the method to be adopted in evaluating the market value. The ruling reads thus :--
The function of the Court in awarding compensation under the Act is to ascertain the market value of the land at the date of the notification under Section 4(1) and the methods of valuation may be (1) opinion of experts (2) the price paid within a reasonable time in bona fide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages and (3) a number of years purchase of the actual or immediately prospective profits of the lands acquired.
(Emphasis supplied)
In fact, all the three factors are necessarily to be considered while evaluating the market value of a piece of land under acquisition. Undoubtedly, if there is no evidence available in relation to one of the factors, certainly it would not be a hurdle for the Reference Court to ascertain the market value on the basis of remaining two factors in respect of which evidence is available on record. But that does not mean that the Reference Court will have an option to choose any one of the factors to be sufficient to decide the market value. When the evidence on all the three factors or more than one factor is available on record, it is necessary for the Reference Court to analyse all such evidence in a proper perspective in order to arrive at the market value of the land. Considering the approach adopted by the Reference Court to choose only one method i.e. the evidence of the expert, which is apparent from the plain reading of the impugned award, it is evident that the same is contrary to the law laid down by the Apex Court in Ravinder Narain's case (supra). That itself would be sufficient to interfere in the impugned award. Whether the ultimate finding regarding valuation is justified or not is totally a different issue but the approach of the Reference Court cannot be approved.
Bombay High Court
State Of Maharashtra vs Posha Rangu Mhatre Since Deceased ... on 30 September, 2005
Equivalent citations: 2006 (2) MhLj 149
Bench: R Khandeparkar, V Kanade
2. The appeal and the cross-objections arise from the judgment and award dated 27-7-1989 passed by the Civil Judge, Senior Division, Alibag in Land Reference Case No. 38 of 1989.
3. By the notification issued on 3rd February, 1970 under Section 4 of the Land Acquisition Act, 1894 (hereinafter called as "the said Act") the claimant's land bearing Survey Nos. 31/5 plus 8a' 35/1, 48/1, 49/4, 50/4 total admeasuring 18,430 sq. metres in area situated in the village of Owe, Taluka Panvel, District Raigad was sought to be acquired for New Bombay Project. The notice under Section 9(3) was issued on 7-3-1975. The award under Section 11 came to be declared on 31-7-1986, awarding total compensation of Rs. 25,007.62, Being aggrieved, the claimant preferred an application under Section 18 of the said Act, claiming enhancement, at the rate of Rs. 15.00 per sq. metre. During the pendency of the proceedings before the Reference Court, the claimant sought to enhance the claim by way of amendment to Rs. 25.00 per sq. metre. The Reference Court, on completion of recording of evidence, enhanced the compensation at the rate of Rs. 15.00 per sq. metre. Being aggrieved, the State has filed the present appeal. Being dissatisfied with the compensation enhanced by the Reference Court, the claimant preferred cross-objections.
4. The learned Assistant Government Pleader appearing for the appellant -State while assailing the impugned award submitted that the Reference Court could not have awarded the compensation over and above which was awarded by the Land Acquisition Officer, considering the fact that the claimant had not made any claim in answer to Section 9 notice served upon him and, therefore, the provisions of unamended Section 25(2) were squarely applicable. Without prejudice to this submission, he has submitted that the Reference Court could not have assessed the market value on metre basis, considering the fact that it is a large extent of land, besides that the evidence on record clearly disclosed the land acquired was the agricultural land and the land in the vicinity had no N.A. potentiality as such and, therefore, the same ought to have been considered as an agricultural land for the purpose of evaluating the market value thereof. The claimant had not placed on record any sale instance from the village of Owe and whatever sale instances or decisions in Reference Cases which were relied upon by the Valuer of the claimant were in relation to neighbouring villages and that too of small pieces of land which were having N.A. potentiality. In the absence of comparability being established between those lands with the land in question, the Reference Court could not have considered those instances for enhancement of the compensation in relation to the land in question. In any case, even assuming that those sale instances and the judgments of the Reference Court could have been the basis for evaluating the market value of the land in question, it was necessary to deduct 1/3rd of the amount so assessed towards the development charges before arriving at the final figure regarding the market value of the land in question. Having failed to do so, the reference Court has acted arbitrarily while fixing the compensation payable to the claimant. He has sought to rely upon the decisions of the Apex Court in the matters of Pitambar Hemilal Badgujar (Dead) by LRs and Ors. v. Sub-Divisional Officer, Dhule and Anr. ;
Kanwar Singh and Ors. v. Union of India
and Ravinder Narain and Anr. v. Union of India in support of his contentions.
5. The learned advocate appearing for the claimant, on the other hand, referring to the testimony of the Valuer along with his report at Exhibit 19 and the plan of the acquired land at Exhibit 20, submitted that the elaborate testimony of the Valuer read with the documentary evidence produced on record clearly disclose that the land in question had N.A. potentiality on the day when the Notification was issued and there being no sale transaction in the village Owe in respect of non-agricultural land, the claimants were j ustified in placing reliance upon the sale instances of comparable pieces of land from the neighbouring villages. The land in question is a flat terrain and does not require substantial expenditure for development purposes and this fact having been clearly established through the testimony of the Valuer and taking into consideration the consistent view taken by this Court in such cases, maximum 10% deduction could have been made, there being no scope to apply the rule of l/3rd deduction for that purpose. He also submitted that the land in question is situated in the neighbourhood of the industrial estate as well as the railway station and the highway, besides being abutting on the internal road in the village and there being civic amenities like electricity and water available, all the ingredients necessary to decide the N.A. potentiality of the land were clearly established through the testimony of the Valuer duly supported by the documentary evidence. Being so, the Reference Court ought to have evaluated the market value of the land at the rate of Rs. 25.00 and not merely at the rate of Rs. 15.00 per sq. metre. He also submitted that the land in question was acquired along with the land in the entire village, together with the land in other villages for new Bombay Project and considering the same the comparability issue could not have been given undue importance as the same was itself established, considering the nature and the extent of the acquisition in question. Attention is also drawn to an unreported decision in the matter of FA No. 917 of 1992 decided on 14-9-2000 and has submitted that the same apparently discloses that the market value in the locality was certainly not below Rs. 20.00 in cases where the land is situated by the side of the road. As regards the contention about failure to answer Section 9 notice and applicability of an unamended Section 25(2), the learned advocate has submitted that the State has not established by necessary evidence on record that Section 9 notice was, in fact, served upon the claimants in spite of the fact that there was specific plea raised in the reference application that no such notice was served upon him. He has also submitted that though the total area acquired is of 18430 sq. metres, it comprised of different pieces of land having different survey numbers and, therefore, contention that the valuation could not have been on metre basis can be of no help to seek interference in the impugned award.
6. The contention of the learned Assistant Government Pleader for the appellant-State is that, bearing in mind the provisions of unamended Section 25(2), on account of failure on the part of the claimant to respond to Section 9 notice, the Reference Court was not justified in granting compensation over and above what was awarded by the Land Acquisition Officer. Though this point is taken in the form of preliminary point, as regards the maintainability of proceedings under Section 18 are concerned, taking into consideration various other points which are sought to be raised in the matter, we shall deal with this point at the end of our judgment.
7. Upon hearing the learned advocates for the parties and on perusal of the records, the first point which arises for our consideration is as to whether the impugned award discloses correct procedure having been followed in evaluating the market value of the land in the facts and circumstances of the case? The Reference Court, after referring to the decision of the Apex Court in The Special Land Acquisition Officer, Bangalore v. T. Adinarayan Setty and
after noting the methodology prescribed under the said decision of the Apex Court for the purpose of ascertaining the market value of the land acquired under the said Act, has proceeded to observe that in order to ascertain the market value, it is necessary to adopt one or more of those methods in land acquisition proceedings. In our considered opinion, this observation by the Reference Court apparently discloses misconstruction of the ruling of the Apex Court in the matter of evaluating the market value of the land acquired under the said Act. The methodology laid down under the said ruling does not give an option to the Reference Court to choose one or more methods as sought to be observed by the Reference Court but ruling clearly lays down the method to be adopted in evaluating the market value. The ruling reads thus :--
The function of the Court in awarding compensation under the Act is to ascertain the market value of the land at the date of the notification under Section 4(1) and the methods of valuation may be (1) opinion of experts (2) the price paid within a reasonable time in bona fide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages and (3) a number of years purchase of the actual or immediately prospective profits of the lands acquired.
(Emphasis supplied)
In fact, all the three factors are necessarily to be considered while evaluating the market value of a piece of land under acquisition. Undoubtedly, if there is no evidence available in relation to one of the factors, certainly it would not be a hurdle for the Reference Court to ascertain the market value on the basis of remaining two factors in respect of which evidence is available on record. But that does not mean that the Reference Court will have an option to choose any one of the factors to be sufficient to decide the market value. When the evidence on all the three factors or more than one factor is available on record, it is necessary for the Reference Court to analyse all such evidence in a proper perspective in order to arrive at the market value of the land. Considering the approach adopted by the Reference Court to choose only one method i.e. the evidence of the expert, which is apparent from the plain reading of the impugned award, it is evident that the same is contrary to the law laid down by the Apex Court in Ravinder Narain's case (supra). That itself would be sufficient to interfere in the impugned award. Whether the ultimate finding regarding valuation is justified or not is totally a different issue but the approach of the Reference Court cannot be approved.
8. The next point which arises for consideration is as to whether the Reference Court was justified in assessing the market value based on metre basis or it ought to have valued it on acre basis. Undisputedly, the total land which has been acquired admeasures 14430 sq. metres. The contention of the learned advocate for the claimant is that the same comprised of various pieces of land of different areas and, therefore, it cannot be construed as a large extent of land. Undisputedly, all these pieces of land are situated adjoining each other and they form one chunk of land admeasuring about 4 acres 24 Ares and 30 sq. metres.
9. In Pitambar's case (supra), two pieces of land; one bearing Survey No. 339/B admeasuring 2 acres and Anr. bearing Survey No. 339/A-2, admeasuring 1 acre, 34 gunthas were sought to be acquired under the two different notifications issued under Section 4 dated 30-10-1965 and 11-3-1971 respectively. For the purpose of establishing the market value, in those facts, the Apex Court ruled that it is settled by a series of judgments that determination of compensation in respect of the lands acquired on square foot basis is an obvious illegal principle being adopted by the Courts only to inflate the market value and no reasonable prudent purchaser would be willing to purchase the land on the square foot basis when large extent of land is offered for sale. Same is the case when land is acquired for public purpose. The Courts are required to consider, sitting in the armchair of the prudent purchaser acting in normal conditions prevailing in the open market, whether, when offered to purchase the land by a willing vendor, he would purchase the same in an open market. The Court on that touchstone should evaluate the market value.
10. Obviously, the Apex Court, even when the total area of the land was 2 acres, considered the same to be the land of large extent to be evaluated on acre basis. Here is a case where the land of one person admeasuring 4 acres 2240 sq. metre's was acquired under the same notification. Though for revenue purposes it was divided under different Survey Numbers, nevertheless, the land continued to be a large chunk of land under single ownership. Merely because the land is divided in different pieces of land for the purpose of survey and revenue assessment, it would not change the size of the land vis-a-vis its owner and that would be a material factor to be taken into consideration for the purpose of deciding the issue as to whether the land is large extent of land or not. Considering the same, therefore, merely because the area of 4 acres and 2240 sq. metres comprised of different survey numbers with different areas in relation to each of the survey numbers, that would not enure to the benefit of the claimant to contend that rule of Pitambar's case (supra) would not apply to the case in hand. The learned advocate appearing for the Government is justified in contending that the Reference Court, therefore, could not have evaluated the market value on metre basis but ought to have considered the same on acre basis. However; that by itself would not be a justification to interfere with the impugned award, if ultimate compensation which has been awarded is found to be just and proper. It is, therefore, necessary to consider whether the compensation awarded is in accordance with the material placed on record by the claimants.
11. As already observed above, the Reference Court has assessed the market value at the rate of Rs. 157- per sq. metre solely on the basis of testimony of the expert and evidence led by him oral and documentary in support of the claimant claim for enhancement. The Reference Court arrived at the finding that the testimony of the Valuer discloses that the sale instances relied upon are in respect of the lands in the vicinity of the acquired land in the sense that they are from the neighbouring villages. The location of the land is such that it is benefited by various civic amenities like electricity and water supply as also highway, railway station and industrial establishments. Besides, the land in question is a flat terrain and does not require much expenditure for its development, and considering the testimony of expert Valuer which discloses the lands in vicinity lacking N.A. potentiality and considering the various sale instances in the neighbouring villages of N.A. plots, in particular from the village of Taloja the market value of the land in question would be Rs. 15.00 per sq. metre.
12. Perusal of testimony of the Valuer, however, clearly discloses the finding arrived at by the reference Court to be totally contrary to the said testimony. At the outset, it is to be noted that the Valuer in his testimony has clearly admitted that he had inspected the site on 2-5-1987 to assess the market value of the land in question as on 4-2-1970. That was the date on which the notification under Section 4 was issued. In his cross- examination, he has further admitted that he had no occasion to visit the land under reference prior to 2-5-1987. Being so, one fact is clear that the Valuer had no personal knowledge about the factual situation in loco in the year 1970 when the notification under Section 4 was issued. It was 17 years after the issuance of the notification, that he, for the first time, had an occasion to visit the land in question. It is neither the case of the claimants nor of the Valuer that there were no change of whatsoever nature in the fact-situation in loco from February, 1970 till May, 1987. Being so, the testimony of the Valuer as regards the situation of the land in question in the year 1970 is of no help to the Reference Court to ascertain the market value. The Reference Court has nowhere considered this aspect of the matter.
13. While the Reference Court states that the testimony of the Valuer discloses the land in question to be flat terrain and does not require much expenditure for its development, however, the testimony of the Valuer reads to the contrary, that "I cannot tell the condition of the land during the rainy season, whether there was water logging in the land. It is my say that there is sloping as the lands are situated at the foot of the hill, so there is no water logging." In other words, in his testimony, he contends the land to be slope land whereas the Reference Court finds the testimony to be disclosing it to be a flat terrain. Further, the testimony discloses that civic amenities are not available for the land under reference. Once the testimony clearly discloses a statement on oath by the Valuer that the land in question was not benefited by civic amenities, it is not understood on what basis the Reference Court could have arrived at the finding about the availability of civic amenities to the land in question.
14. It is thus apparent from the testimony of the valuer that the land under acquisition, apart from having no advantages of civic amenities was essentially situated in an area surrounded by agricultural land. As already observed above, the claimant has not been able to produce any sale instance at any plot in the Village Owe. Whatever sale instances were sought to be relied upon were from Village Taloja. In the circumstances, the entire land was used for agricultural operations. At the same time, testimony of the valuer discloses that for the purpose of valuation the valuer has not collected any data regarding income from either land in question or the neighbouring land in village Owe. He has categorically stated in his testimony that he did not collect data of agricultural income of the lands situated in the area of Village Owe nor he perused the Annewari Register maintained by the Tahsildar in relation to the crop production in the village in question. Added to this, there is a categorical statement by the Valuer to the effect that "the lands under reference are agricultural lands and surrounded by agricultural lands". In brief, therefore, the evidence on record nowhere discloses any non-agricultural potentiality of the land in question, while, on the other hand, it essentially discloses the agricultural potentiality of the land in question as well as that of the surrounding lands.
15. Undoubtedly, when the sale instances from the locality from which the land is acquired or in the neighbourhood areas are available, question of adopting capitalization method for the purpose of valuation may not arise. However, when such evidence is not forthcoming from the claimant, the Court is left with no alternative than to adopt the method of capitalization and, for that purpose, it is necessary for the claimant to bring on record evidence regarding annual income from the agricultural land. The Apex Court in Special Land Acquisition Officer v. P. Veerabhadrappa etc. etc. has
elaborately described the procedure to be followed while adopting the method of capitalization for the purpose of arriving at the market value of the agricultural land. It was held therein that "it is axiomatic that the best evidence to prove what a willing purchaser would pay for the land under acquisition would be the evidence of sales of comparable properties, proximate in time to the date of acquisition, similarly situate, and possessing the same or similar advantages and subject to the same or similar disadvantages. Market value is the price the property may fetch in the open market if sold by a willing seller unaffected by the special needs of a particular purchase. Where definite material is not forthcoming either in the shape of sales of similar lands in the neighbourhood at or about the date of notification under Section 4(1) or otherwise, the Court has no other alternative but to fall back on the method of valuation by capitalization. In valuing land or an interest in land for purposes of land acquisition proceedings, the rule as to number of years' purchase is not a theoretical or legal rule but depends upon economic factors such as the prevailing rate of interest in money investments. The return which an investor will expect from an investment will depend upon the characteristic of income as compared to that of idle security. The main features are : (1) Security of the income : (2) fluctuation : (3) chances of increase (4) cost of collection etc. The most difficult and yet the most important and crucial part of the whole exercise is the determination of the reasonable rate of return in respect of investment in various types of properties. Once this rate of return and accordingly the rate of capitalization are determined, there is no problem in valuation of the property." After reiterating the law laid down in Rustom Cavasjee Cooper v. Union of India to the effect that, "capitalization of the net annual profit of the property at a rate equal in normal cases to the return from giltedged securities. Ordinarily value of the property may be determined by capitalizing the net annual value obtainable in the market at the date of the notice of acquisition", it was held by the Apex Court that "it is thus clear from the above enunciation that the method of determining the value of the property by application of multiplier to the net annual income or profit should only be adopted when there is no evidence of comparable sales or similar lands in or about the neighbourhood at the relevant time i.e. on the date of notification under Section 4(1) of the Act. In certain circumstances however the Court has no other alternative but to fall back on the capitalized value".
16. The above decision of the Apex Court, therefore, clearly lays down the law that in case of failure on the part of the claimant to bring on record the comparable sale instances, the Court is left with no alternative than to fall back on the method of valuation by capitalization. The capitalization would involve application of multiplier to the net annual income from the land acquired.
17. Similarly, the Apex Court in O. Janardhan Reddy and Ors. v. Spl Dy. Collector, L.A. Unit-IV, LMD, Karimnagar, A.P. and Ors. has also narrated various things to be considered for the purpose of adopting the method of capitalization by applying the multiplier to the annual income derived from the agricultural land. The Apex Court therein held thus:--
10. When agricultural lands are acquired under the Act, the owners of such lands or persons who have interest in them become entitled to payment of compensation awarded for such lands under the Act. The main component of such compensation would be the market value of the acquired agricultural land. Market value of agricultural land has to be determined under the Act with reference to the date on which preliminary notification was published in the State Gazette proposing its acquisition and according to the price which a buyer interested in agriculture would have paid for it to the owner having regard to its soil, the irrigation and other facilities, it commanded for its maximum utilisation for agricultural purposes. The highest factor that contributes to the market value of agricultural land, is the irrigation facility it commands, admits of no controversy. Irrigation facility commanded by the agricultural land is that water supply which it can command for crops to be grown in it. Sources of such water supply, apart from rain water, may be river water, tank water, well water etc. Where river water or tank water is unavailable or is insufficient for cultivation of agricultural lands open irrigation wells are sunk. If the soil of the land in which they are sunk is likely to cave in, the same will be prevented by raising stone or brick or cement walls or by use of cement rings. The yield of water in wells vary from well to well. Intensive cultivation of agricultural land is done where the water yield of its irrigation well/wells is high. Such irrigation wells, even if had been dug up and walled effectively, may stop yielding water because of bore wells bored in the neighbouring lands or some other natural causes such as drought. In such events, the irrigation wells will become worthless. Hence the advantage which an agricultural land may have because of the irrigation facility it had from the irrigation well, could only enhance the value of agricultural land depending upon the water yield from the well. Again when the agricultural land, the irrigation of which was possible from the water of the irrigation well, is acquired, the value of the land so acquired will have to be determined taking into consideration the irrigation facility it had from the well. In this situation the irrigation well in an acquired agricultural land, cannot have a value apart from the value of the agricultural land itself.
If we peruse the evidence on record, it is apparent that the claimant, in this case, has not produced any evidence either relating to the income derived from the land in question or relating to any of the factors referred to by the Apex Court in the above quoted judgment which could assist the Court in ascertaining the market value of the agricultural land. In the absence of any material on record regarding either of the annual income from the land or factors referred to above in the decision of the Apex Court, the Reference Court merely on relying upon the testimony of the valuer which is absolutely of no help to ascertain the market value of the land in question, could not have determined the compensation @ Rs. 15/- per sq. metre. There was no material before the Reference Court to grant any enhancement over and above the compensation awarded by the Land Acquisition Officer.
18. It is sought to be contended on behalf of the claimant that in case of acquisition of the entire village, the question of establishing individual potentiality of each piece of land to the effect that it contains non-agricultural potentiality cannot arise nor issue regarding comparability would also arise and the land is to be valued as a whole, deserves to be rejected in limine as the law on the point of method to be adopted for the purpose of valuation of the land acquired is well settled and it has to be ascertained with reference to each plot of land which is subjected to reference before the Reference Court in proceedings under Section 18 of the said Act. It was clearly ruled inVakratunda Chintaman Deo v. Special Land Acquisition Officer reported in AIR 1960 Bombay 232 that every piece of land within municipal area acquired by the Government may not be assumed to have an immediate building potentiality and even erection of temporary hutments in agricultural land would not ipso facto change the nature of the land to the non-agricultural from agricultural nature of such land. It was also held therein that, the land, once it would have been found to be the agricultural land, the same is to be valued as an agricultural land. Undoubtedly, this does not mean that the other potentialities of the land in question are to be totally ignored. However, the potentialities of the land are to be considered with reference to those existing on the date of issuance of the notification under Section 4, bearing in mind the existing conditions not only in relation to the land in question but also in relation to the lands surrounding such land. The Apex Court in the case of State of Orissa v. Brij Lal Mixra etc etc. has held that "the very concept of the
potential value would mean existing in possibility but not in act, i.e., the land is capable to be used in future in the existing condition" and further that "the Court shall not take into consideration any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired; sixthly, any increase to the value of the other land of the person interested likely to accrue from the use to which the land acquired will be put. In other words, the statute expressly enjoins to omit consideration of the future use of the land or potentialities of the neighbouring lands on account of the acquisition in determining compensation."
19. Considering the normal rule that the market value will depend upon the offer by a willing buyer of the agricultural land, which is also surrounded by the agricultural lands showing no sign of non-agricultural activities therein can hardly be considered as non-agricultural land nor can be assessed as otherwise. On the contrary, such land has necessarily to be evaluated for the purpose of market value considering the same as an agricultural land bearing in mind the other potentialities of such land as existing on the date of the issuance of the notification under Section 4 and bearing in mind the surrounding circumstances prevailing then.
20. The last point which needs to be addressed to is in relation to the absence of response to Section 9 notice. It is the contention of the claimant that no such notice was ever served upon the claimant. It is not in dispute that the proceedings relate to the period prior to 24-9-1984 and, therefore, the same would be covered under the provisions comprised under Section 25 of the said Act. In terms of unamended Section 25(2) when the claimant had refused to make such claim without sufficient reason to the satisfaction of the Reference Court, the amount to be awarded by the Reference Court : cannot exceed the amount awarded by the Land Acquisition Officer, Section 25(2), in fact, reads thus:--
25(2) When the applicant has refused to make such claim or has omitted without sufficient reason (to be allowed by the judge) to make such claim, the amount awarded by the Court shall in no case exceed the amount awarded by the Collector.
While, it is the contention of the State that the notice under Section 9(3) was duly served upon the claimant, it is the contention of the claimant that no such notice was ever served. It is not in dispute that there was a specific averment in that regard by the claimant in the application for reference under Section 18 of the said Act. The contention on behalf of the State, however, is to the effect that the claimant had not discharged his burden in relation to the sufficient reason to the satisfaction of the Judge regarding failure to make such claim in answer to the notice, whereas the contention on behalf of the claimant is that since there was no such notice served, there was no occasion for the claimant to put forth his claim and, therefore, there was no occasion for the claimant to satisfy the Court in that regard.
21. It is already held by this Court in other matters that the Reference Court while dealing with the reference application cannot ignore the statutory fetters imposed upon the Reference Court in ascertaining the market value of the land. Section 25(2) requires the claimant to putforth his claim regarding the compensation in answer to Section 9 notice. When the claimant fails to putforth such claim, it is obligatory upon him to satisfy the Reference Court giving sufficient reason for his failure or omission to putforth his claim in order to enable him to claim the amount over and above which has been awarded by the Land Acquisition Officer and in case of failure in that regard by the claimant, the Reference Court cannot award the compensation over and above the one awarded by the Land Acquisition Officer, That being the law and bearing in mind the principle behind Section 114 and Section 104 of the Evidence Act, it will be essential for the claimant to discharge his burden under Section 25(2). As regards the service of notice under Section 9(3), once the Land Acquisition Officer proceeds to declare the award, there would be presumption of an official act as contemplated under Section 9(3) having been carried out by the Officers and it would be, therefore, primarily for the claimant to establish about the discharge of his burden under Section 25(2). Further Section 104 of the Evidence Act clearly provides that "the burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence." Obviously, therefore, when the claimant desires to give evidence in support of his claim over and above the amount awarded by the Land Acquisition Officer, he will have to discharge the burden which is upon him under Section 25(2), failing which, the presumption available under Section 114 will be to the benefit of the State to contend that notice under Section 9 of the said Act was duly served upon the claimant.
22. Undoubtedly, one can contend that in the matter of proving of fact, it is primarily the facts in positive that are required to be established and once those facts are established, converse will have to be specifically established. In other words, once it is stated on oath that the party has not received the notice, the onus will shift upon the opposite party, contending about service of such notice. However, for that purpose the party expecting the Court to draw such inference has to make a categorical statement on oath to the effect that no such notice was served upon the party. In the case in hand, though it is not disputed that in the Reference Application there was a claim to the effect that no notice under Section 9 was served upon the claimant. There was no such assertion on oath when the claimant was examined before the Court. It is to be noted, as already observed above, that the provisions of Section 25 impose certain fetters upon the power of the Court in the matter of ascertaining the market value of the land acquired. Being so, the person i.e. the claimant desiring the Court to overcome the restrictions imposed under Section 25(2) in relation to the bar against awarding compensation over and above the one awarded by the Land Acquisition Officer, in the absence of claim in that regard by the claimant in answer to Section 9 notice, it is absolutely necessary for the claimant to establish the fact about non-receipt of the notice and that could have been done only when he had entered the witness box by making a categorical statement to that effect. In the absence of such statement, the presumption available in favour of the respondents under Section 114 of the Evidence Act will stand. Besides, the provisions of Section 104 of the Evidence Act also will come in the way of the Court in considering the evidence regarding enhancement of compensation over and above the one awarded by the Land Acquisition Officer, considering the fact that the claimant, in the case in hand, failed to discharge the burden in that regard. It is to be held that the claimant had not putforth his claim in answer to Section 9 notice and, therefore, the Reference Court was not empowered to award over and above what was awarded by the Land Acquisition Officer.
23. For the reasons stated above, therefore, the appeal filed by the State succeeds. The same is accordingly allowed and the impugned award passed by the Reference Court is hereby set aside. The amount, if any, paid in accordance with the impugned award shall be refunded by the claimant to the State within a period of 12 weeks with interest @ 6% per annum. The Appeal filed by the State is accordingly disposed of. The cross-objections filed by the claimant are, therefore, liable to be dismissed and are hereby dismissed. No order as to costs.
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