Hindustan Organic Chemicals Ltd. Vs Vasudevan Damodaran Namboodiri and Others

Thomas, J.@mdashAbout 120 acres of land were acquired under the Land Acquisition Act for the establishment of "Phenol Project", an undertaking of M/s. Hindustan Organic Chemicals Limited. Dissatisfied with the amount awarded by the Land Acquisition Officer, the land owners requested that the matter may be referred to the Civil Court. It was so done. Land Acquisition References were heard by the Second Additional Sub Judge, Ernakulam. L. A. R. Nos. 101 and 119 of 1982, the main cases, were disposed of by a common judgment dated 16-2-1985. This was followed in the other cases. As per the judgments passed by him, enhanced market value was granted to the land owners So M/s. Hindustan Organic Chemicals Limited (hereinafter referred to as the appellant) filed appeals challenging the enhancement. As this batch of 100 appeals raises common questions for consideration, they can be disposed of together by this common judgment. The Land Acquisition Officer classified the lands acquired in to six categories. He based his award on Ext. R6 dated 29-9-1978, Ext.R7 dated 9-2-1980. Ext. R3 dated 31-12--1979, Ext. R2 dated 9-4-1980 and Ext. R5 dated 7-7-1979, amongst others. The lower court discussed in detail the evidence relied on by the Awarding Officer as the basis of the award. The learned Sub Judge accepted the evidence of the claimants and awarded enhanced compensation in all the cases The documents relied on by the Awarding Officer consists of Exts. R6, R7, R3, R2 and R5. The court below relied on Ext A4 dated 9-9-1980 (proved by P. W 4), Ext. A3 dated 22-8-1980 (proved by P. W. 3), Ext A2 dated 18-2-1980 (proved by PW. 2), besides some other circumstances which appeared to him to be germane. The details of the award made by the Land Acquisition Officer, the amount awarded by him, as well as the enhancement ordered by the court and the basis thereof are given as Annexure ''A'', appended to this Judgment.

2. For the various acquisitions, there were two acts of notification under Sec. 3 of the Act, notification dated 22-9-1980, and a later notification dated 4-11-1980. The majority of the cases were under the later notification. So also, the awards were passed on different dates, in 1981 and in 1982. Possession of the land was taken on different dates. So also, the judgment was delivered by the lower court on different dates. These details mentioning the number of the Land Acquisition Case, L A. R. relevant thereto in the court, the relevant number of the Land Acquisition Appeal in this court, the date of the notification, the date of the Award, the date of taking possession and the date of judgment of the court below for these 100 cases, are given as Annexure-''B'', appended to this judgment.

3. It is common ground that the appellant Company has not deposited any amount as ordered by the court below. It is also common ground that the extent of the property, the number of the claimants in each Reference and the proportionate amount which they are entitled to as compensation, are correctly stated in the judgment of the court below. [The land owners, who are the claimants will be referred to hereinafter as the respondents.]

4. The entire controversy centered round the principle or the basis adopted for fixing compensation for the various lands acquired and the amount awarded A common set of documents and a common reasoning was adopted by the appellant on the one hand, and by the respondents on the other, irrespective of the extent involved in each case. But the point on which the appellant on the one hand and the respondents on the other, joined issue was with regard to the broad classification, the principle adopted and the amounts fixed for each category.

5. Shri. T.K. Chandrasekhara Das learned counsel for the appellant, mainly contended that the court below should have accepted and acted on Exts. R6 dated 29-9-1978, Ext. R7 dated 9-2-1980, Ext. R3 dated 31-12-1979, Ext. R2 dated 9-4-1980 and Ext. R5 dated 7-7-1979 The learned Counsel forcibly contended that, at any rate, there cannot be any objection to accept Ext R6 which was proved by R W. 6. Ext. R6 shows that a plot of 40 cents of land was sold by its owner to M/s Carbon Chemicals Company for Rs 40.000/-. It worked out to Rs. 1000/- per cent. Why a transaction entered into with a public sector undertaking should not be accepted, in preference to other documents, entered into between private parties, asked the counsel? Similarly, appellant''s counsel pressed for accepting Exts. R7, R3, R2 and R5. It was argued that if Ext. R6 is accepted for category No. 1, the value of the properties should have been proportionately fixed at a lower rate for the other categories. According to the learned counsel, although the trial court discussed in detail these documents in paras 7 to 9 of its judgment, the learned Sub Judge has not specifically found that these documents are unacceptable. Counsel further contended that the trial court ought not have accepted and acted on Exts. A1 to A4 by placing reliance on the testimonies of P. Ws. 1 to 4, without expressly discarding the evidence adduced by the appellant.

6. To appreciate the above contention, an appraisal into the background of the instant acquisition is necessary. The court below has adverted to that aspect. A knowledge of the background, in which this mass acquisition of about 120 acres was made for Phenol Project will be of advantage. The locality is a fast improving industrial area. The Oil Refinery was started in 1954, for which about 730 acres in the locality were acquired. The Petro Chemical Complex, which is a bye-product of the Oil Refinery, came into existence later. Phenol Project is one of the large number of industries which have come up in the vicinity of the Oil Refinery. About 1500 acres were freezed for Petro Chemical Complex. There was heavy pressure for acquisition for F.A.C.T., Oil Refinery etc., and there was threat of acquisition during the relevant time. It was difficult to get a proper document showing the actual market value. These extra-ordinary circumstances, which are discernible from the evidence of PW. 1, were borne in mind by the court below. Ext. A1, a sale deed in 1965 (which shows a land value at the rate of Rs. 500/- per cent) vis-a-vis exts. A2 to A4 and other documents will also project the steady increase in land value in the said locality.

7. In the above background, the court below adverted to various sale deeds marked by the respective sides together with the oral evidence in support of those transactions. The court below came to the following conclusions:

From the evidence of P.Ws. 1 to 4 it can be seen that Exts. A1 to A4 were executed in the ordinary coarse of business There was no need of showing higher value. Moreover, it is seldom that the valuation is made at higher rate in the documents.

8. Both sides placed reliance on a separate set of documents and depositions of witnesses to substantiate their plea for proving the same point, i.e. the market value of the land at the relevant time. After analysing the probabilities, the court below chose to accept Exts. A1 to A4 as documents executed in the ordinary course of business, and in effect, discarding or rejecting the documents relied on by the appellant.

9. It appears to us that the court below had sufficient justification, to prefer Ext. Al to A4 and the evidence of P. Ws. 1 to 4, compared to Exts. R6, R7, R3, R2 and R5 in enhancing the compensation to be awarded as stated in the judgment. Ext. A4 was relied on to show that the value of the property at that time was Rs. l,600/- per cent, which related to Category No. 1. Ext. A3 and the evidence of P. W. 3 were relied on for fixing the land value for the plots of land in Category No. II at the rate of Rs. 1,260-per cent. Ext. A2 and the evidence of P. W. 2 were relied on by the court below infixing land value at the rate of Rs. 1,250/- for the lands covered by Category No. III. For the property situated outside half a kilometre away from the main road, the court said that there is no disparity between the properties lying within half a kilometre and outside half a kilometre from the main road. Hence the court below fixed market value at the rate of Rs. 1,100/- percent for the lands situated beyond half a kilometre away from the main road. Proportionate value of Rs. 680/- percent was adopted for Category No. V where there was no road frontage. Similarly market value for the wet land was fixed at the rate of Rs, 387/- per cent.

10. Ext. R6 sale deed in favour of M/s. Carbon Chemicals Limited has been proved by R, W. 6, who is the purchase Assistant of the vendee-Company. The evidence of R. W. 6 shown that the vendor asked for Rs. 1000/- per cent and the company accepted the offer. The company is manufacturing carbon black and its factory is situated adjacent to the land covered by Ext. R6. It is only natural that the owner of Ext. R6 property would have desired to shift his residence away from a place the environment of which is polluted by the products of the Carbon Black. The vendor approached the Company itself to purchase his land because he thought that nobody else would buy his land in that situation. R.W. 3 who proved Ext. R7 had admitted that his business included buying and selling of properties and that he knew that in order to attract more industries in the place, land value should be shown less. He would, in all probabilities, have had the tendency to under-value the price in the sale deed. R. W. 5 who proved Ext. R3 sale deed has admitted that R W 3 had an active role as a brocker in the negotiations which ended in Ext R3 sale deed. We were taken through the relevant documents and depositions of the witnesses by counsel on both sides. On a careful perusal of the same, we see no ground to differ either from the reasoning or the conclusion of the court below.

11. Shri. Chandrasekhara Das, the learned counsel for the appellant mainly complained that the evidence and the documents adduced by the company were not expressly rejected by the court below. It is true that the learned Sub Judge did not say in so many words that the evidence adduced by the company were rejected. It is settled law, that in a civil case a mere preponderance of probability, due regard being had to the burden of proof, is sufficient basis for decision. In this context, it would be useful to quote a passage from Phipson on Evidence, Thirteenth Edition, (at page 66):

The standard of proof required in civil cases is generally expressed as proof on the balance of probabilities If the evidence is such that the tribunal can say ''we think it more probable than not'', the burden is discharged, but if the probabilities are equal it is not.

The degree of probability which must be established will vary from case to case. The degree depends upon the subject-matter.

The learned counsel relied on the decision reported in The The Special Land Acquisition Officer, Bangalore Vs. T. Adinarayan Setty, . That is a case in which the appellate court completely left out certain documents from consideration in assessing the market value of a property in land acquisition proceedings. Therefore the Supreme Court deprecated the method adopted by the appellate court The said decision of the Supreme Court is not applicable to the facts of this case.

12. The judgment of the court below which is appealed against should be read as a whole to determine whether every material fact, for and against, has been considered carefully. We do not think that the judgment of the lower court should be examined so minutely or so microscopically as to discover a minor lapse, or an incautious expression of opinion. After all, the duty of the court is to find out the truth based on probabilities It is true that acceptance of one set of documents and evidence does not necessarily amount to rejection of the other let of documents and evidence in toto. But in this case the rival parties relied on two independent sets of documents and evidence, and in such circumstances, the acceptance of one set of documents and evidence would indicate that the other set of documents and evidence were unacceptable to the court. A finding in that regard is implicit in such cases. Tested in the light of the above principles, the court below was justified, on a discussion of the rival documents and evidence produced by the parties, in coming to a conclusion that "from the evidence of P. Ws 1 to 4 it can be seen that Exts. A1 to A4 were executed in the ordinary course of business" and in placing reliance on them in preference to Exts. R6, R7, R3, R2 and R5. In other words, the evidence of P.Ws. 1 to 4 as also Exts. Al to A4 "affords a better and more probable basis" than the documents and the evidence of the appellant. The aforesaid approach is in accordance with law. There is no error in adopting such a course. In the circumstances, it cannot be said that there is any infirmity in not expressly discarding the documents and evidence adduced by the appellant.

13. In assessing the compensation payable, the principles laid down by the Privy Council in AIR 1939 98 (Privy Council) ; and the Supreme Court in Raghubans Narain Sing v. Uttar Pradesh Government ( A. T. R 1967 S. C. 465; Smt. Tribeni Devi and Others Vs. Collector of Ranchi, ; The Collector, Raigarh Vs. Harisingh Thakur and Another, ; Raja Srivalgoti Sarvagna Kumara Krishna Yachandra Bachadurvaru Vs. Special Land Acquisition Officer, City Improvement Trust Board, Bangalore and Others, are relevant. The land value should be fixed not only by reference to the use to which it is being put at the time at which its value has to be determined, but also by reference to the uses to which it is reasonably capable of being put in the future All its existing advantages and its potential possibilities when laid out in its most advantageous manner, should be taken into account. The Court can always take into account any special circumstances, apart from the methods of valuation traditionally adopted, in order to arrive, as nearly as may be at an estimate of the market value In some situations, the estimation of the market value depends largely on evaluation of many imponderables and may involve to some extent a matter of guess work. The above principles have been stated in the decisions reported in State of U.P. v. Mohd. Assan ( 1980 All. L. J. 423); Sreedharan and others v. State of Kerala (1967 K. L T. 1067) and State of Kerala v. Purashothaman (1978 K. L. T. 825). Tested in the light of the above principles, the enhanced compensation awarded by the court below is justified.

14. Now we come to the next important point. Most of the respondents have filed cross-objections claiming benefit of the provisions of the Land Acquisition (Amendment) Act (Act 68 of 1984) (for short ''the Amendment Act''). The following contentions were raised in that regard:-

(a) Under Sec. 23 (1-A) of the Land Acquisition Act apart from the compensation, an additional amount at the rate of 12 per cent per annum on the market value fixed for the period commencing on and from the date of the publication of the notification to the date of the award or the date of taking possession of the land, shall be awarded;

(b) Solatium at the rate of 30 per cent on the market value shall be awarded as per Sec 23 [2] of the said Act; and

(c) Interest at the rate of 9 per cent for the excess amount granted by the court shall be awarded as per Sec 28 of the Act, from the date on which the Collector took possession of the land till the date of payment of such excess into court and if the amount is not paid after the date of expiry of a period of one year from the date of taking possession of land acquired, interest at the rate of 15 per cent per annum from the date of the said period of one year on the amount of such excess or part thereof which has not been paid into court before the date of such expiry.

Thus, apart from the land value, additional amounts under the three counts mentioned above are also claimed. Though the learned counsel for the appellant opposed the award of solatium fixed u/s 23 (2) of the Act as also interest at the rate specified u/s 28 of the Act, we see no force in the objections raised by the learned counsel. The trial court was evidently in error in not awarding the solatium as provided by Sec. 23 (2) of the Act and also interest at the rate specified in Sec. 28 of the Act. Even if the said plea was not raised earlier, it will not preclude this Court from awarding the respondents the legitimate solatium and interest as per the Amended Act. It is the duty of the court, whether trial or appellate, to give effect to the mandatory provisions of the statutes passed by the legislature. Even in the absence of cross-objections and cross-appeals the respondents are entitled to the solatium and interest as provided in the Act, as amended by Central Act 68 of 1984. We have no hesitation to hold that various respondents are entitled to the increased solatium at the rate of 30 per cent of the market value and also the increased rate of interest as specified in Sec. 28 of the Act. We are fortified in this view by the decision of the Supreme Court reported in Bhag Singh and Others Vs. Union Territory of Chandigarh through the land acquisition collector, Chandigarh, and also the decisions in Collector, Agra v Ganga Bhishan and others ( 1978 All. L. J. NOC 42); State of U.P. v. Mohd. Assan (1980 All. L J. 423) and The State of West Bengal Vs. Dhanesh Bijoy Sahana and Others, We therefore, order that the judgments of the trial court will stand modified to the extent the trial court has not awarded the increased rates as specified in Sec 23 (2) and Sec 28 of the Act.

15. Now we shall deal with the controversy as to whether the respondents are entitled to the additional amounts, as provided under Sec. 23 (1-A) of the Land Acquisition Act That Section was added by Act 68 of 1984. The learned Advocate General, who appeared for the State, as also the learned counsel for the appellant contended that the respondents are not entitled to the additional amount envisaged in Section 23 (1-A) of the Act. According to them, the said section is applicable only in cases where no award has been made by the Collector before 30-4-1982. or where proceedings for acquisition of any land under the Principal Act Commenced after 30-4-1982. In these cases the awards were passed long before 30-4-1982. As the Supreme Court in Bhag Singh and Others Vs. Union Territory of Chandigarh through the land acquisition collector, Chandigarh, did not consider the scope and applicability of Sec. 23 (1-A) of the Act. we have to consider the above contention in the light of the decisions rendered by the High Courts. The Delhi High Court in Raghbir Singh Vs. Union of India and Others, , the Bombay High Court in Union of India Vs. Maria Olivia Carvalho and Others, and the Full Bench of the Karnataka High Court in Spl. Land Acquisition Officer v. Soma Gopal ( AIR 1986 Kar 179) have categorically held that the provisions regarding payment of additional amount u/s 23 (1-A) is applicable to all pending cases in courts, whether pending in reference or in appeal. The aforesaid decisions take the view, that the additional amount under Sec. 23 (1-A) is awardable in all cases which fall to be decided by Courts after 24-9-1984, the date when the Amendment Act became law. It was further held that the said additional amount is not a part of the market value, and is a "statutory creation" or "statutory increase" or "statutory allowance" which was intended to cope with a situation complicated by inflation.

16. The learned Advocate General as also the learned counsel for the appellant submitted that the ratio in the aforesaid three decisions requires reconsideration.

17. The Land Acquisition (Amendment) Act, 1984 received the assent of the President on 25-9-1984. Sec 30 of the Amendment Act deals with "transitional provisions". Sections 30 (I) says that Sec.23 (1-A) shall apply and shall be deemed to have applied, also to and in relation to (i) acquisition proceedings pending on 30-4-1952, in which no award had been made by the Collector before the date; (ii) acquisition proceedings commenced after the dates whether or not an award has been made by the Collector. Mark the words also to in Sec. 30 of the Amendment Act. Sec. 23 (1-A) is of course prospective and will apply to all cases decided after 24-9-1984 By Sec. 30 (1) the provisions of Sec. 23 (1-A) is made retrospective in two more classes of cases, as indicated in Section 30 (1). Therefore, the position is clear that Section 23(1-A) will not be applicable to the cases decided before 24-9-1984 except in the two contingencies specified in Section 30 (1) (a) and (b). Its applicability to all cases pending as on 24-9-1984, therefore, need not be doubted in view of the above reasoning This is the reasonable interpretation to be placed on Section 30 (1) of the Amendment Act.

18. That apart, we should remember that Sec. 23 (1-A) of Act 68 of 1984 is a Central Statute. It is fairly settled that in the matter of construction of the Central Statute, conflict should be avoided, amongst the various High Courts and unless there are overriding reasons to take a different view, the considered opinion of the other High Courts should be followed Law is not a mere mental exercise. The decisions of the Bombay High Court reported in Maneklal Chunilal and Sons Ltd. Vs. Commissioner of Income Tax (Central), Bombay, : Commissioner of Income Tax, Bombay City I Vs. Chimanlal J. Dalal and Co., : Commissioner of Income Tax Vs. Tata Sons Private Ltd., and the decision of the House of Lords in Income Tax Commissioner for City of London v. Gibbs [(1942) 10 ITR Suppl. 121 132] will substantiate the above approach to the question. Therefore we concur with the reasoning and ratio adopted in the above decisions rendered by the Bombay, Delhi and Karnataka High Courts. We, therefore, hold that the respondents are also entitled to the additional amount calculated at the rate of 12 per cent per annum on the market value awarded by the court below, for the period commencing on and from the date of publication of the notification under Sec.4(1) of the Act to the date of the award or the date of taking possession of the land, whichever is earlier. The respondents are also entitled to 30 per cent solatium on the market value of the land (in fixing solatium of 30 per cent the additional amount payable under Sec 23 (J-A) of the Act shall not be included in the market value). The respondents are also entitled to 9 per cent interest on the excess amount awarded by the court, from the date on which possession was taken by the Collector to the date of payment of such excess amount in court and on the expiry of one year from the date of taking possession of the land, the respondents are entitled to interest at the rate of 15 per cent per annum from that date on the said aggregate amount till the date of recovery.

We see no reason to interfere with the judgments of the learned Subordinate Judge, except in regard to the modifications made above. These appeals are disposed of as above and the parties are directed to bear their respective costs throughout.

Immediately after the judgment was pronounced, counsel for the appellant, Mr. Chandrasekhara Das, prayed for the issue of a certificate for appeal to the Supreme Court against the judgment under Article 133 read with Article 134A of the Constitution of India. We are of the view that the case does not involve any "substantial question of law" of "general importance", which needs to be decided by the Supreme Court of India. We reject the prayer.