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The Special Land Acquisition Officer Vs. the Trustees of the Will of A.H. Wadia - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberO.C.J. Appeal Nos. 81 and 82 of 1953 and Consolidated L.A. Reference Nos. 1, 13, 16, 17, 19, 20, 21
Judge
Reported in(1956)58BOMLR766
AppellantThe Special Land Acquisition Officer
RespondentThe Trustees of the Will of A.H. Wadia
Excerpt:
.....must rely not only on the factum of the sale, but also on the fact that that particular sale is a genuine sale. it is always open to the other party to admit that a particular sale on which the claimant is relying is a genuine sale and the claimant need not prove anything more except the factum of the sale. therefore, in each case it would depend upon what is the nature of the admission made by one party or the other in the land reference proceedings. in such circumstances three positions may arise: the land acquisition officer may only admit the factum of the sale, in which case, if the claimant has not proved anything more, that sale would have no relevancy as far as the fixation of compensation is concerned. secondly, the land acquisition officer may admit the sale subject to his..........of mr. justice shah which may for a moment lead to the conclusion that in every case a party must lead evidence to prove that the instance of sale is an instance of genuine sale, and this is what the learned judge says:whichever party relies upon an instance of sale as furnishing evidence of market value of the land under acquisition must lead evidence that it was an instance or a genuine transaction of sale of property for its true market value. with respect, obviously this observation which is perfectly correct is subject to the qualification that where the other side admits that the sale is an instance of a genuine transaction, then the necessity of proof is dispensed with.3. the other judgment relied upon is an earlier judgment of the same bench: the special land acquisition officer.....
Judgment:

M.C. Chagla, C.J.

1. [His Lordship after setting out the facts, proceeded:] Before we deal with these instances a rather important point of procedure was raised by Mr. Bhat which we must proceed to consider. What was urged by Mr. Bhat was that many of these sales relied upon by the claimants were not strictly proved in the sense that neither the vendor nor the purchaser was called to depose to these sales and it was urged that the mere admission by the Land Acquisition Officer of the fact that these sales had been effected cannot take the place of the proper proof required by law. In order to understand this contention it is necessary to bear in mind the exact position of the claimant when he comes on a reference before the Court. The award of the Land Acquisition Officer, as has often been said, is nothing more than an offer. It is open to the person whose lands are being acquired to accept that offer or he may not accept that offer and claim a reference to the Court. By claiming a reference to the Court and going to the Court he challenges the fairness of the compensation offered by the Land Acquisition Officer in his award, and to the extent that he challenges the award he is in the position of a plaintiff and the burden is upon him to satisfy the Court that the award made is not a proper or a fair award. One of the methods by which he can challenge the award is by satisfying the Court that sales effected in the neighbourhood at or about the time show that the value of the land was higher than the value given by the Land Acquisition Officer. But, it is clear that the only sales that the claimant can rely upon are genuine sales, sales which indicate a proper market value, A sale may he a forced sale, a sale may be an accommodation sale, a purchaser may be prepared to pay a fancy price for a particular land, there may be an element of speculation in a sale, but the Court has to discard these sales and try and concentrate only on those sales which are effected between a willing purchaser and a willing seller and in which these extraneous factors are absent. Therefore, in relying on a sale the claimant must rely not only on thefactum of the sale, but also on the fact that that particular sale is a genuine sale. If he merely proves thefactum of the sale, he has not proved what is necessary in order to enable him to rely on that sale. But what has been overlooked in the argument advanced by Mr. Bhat is that it is always open to the other party to admit that a particular sale on which the claimant is relying is a genuine sale and the claimant need not prove anything more except thefactum of the sale. Therefore, in each case it would depend upon what is the nature of the admission made by one party or the other in the land reference proceedings. Three positions may arise. The Land Acquisition Officer may only admit thefactum of the sale, in which ease, if the claimant has not proved anything more, that sale would have no relevancy as far as the fixation of compensation is concerned. The Land Acquisition Officer may admit the sale subject to his right to calling evidence to prove that, the sale was not a genuine sale, in which case it would depend upon the nature of the evidence led by him, and if he fails to lead any evidence, then his admission would stand and the sale must be looked upon as a genuine sale. The third position would be where the Land Acquisition Officer may admit the sale to be a genuine sale; he may admit not only thefactum of the sale but the fact that it was a sale between a willing purchaser and a willing seller. If there is such an admission, then it would not be necessary for the claimant to adduce any evidence. We refuse to countenance the proposition put forward by Mr. Bhat that in every case, irrespective of the nature of the admission made, it is the duty of the claimant to call, the purchaser or the vendor in order to prove the nature of the sale and to establish before the Court that it was a genuine sale.

2. Strong reliance was placed, by Mr. Bhat on two judgments of this Court which according to him lay down the proposition that a sale must be rejected unless it is proved by a party to the sale being called before the Court and the party deposing before the Court as to the nature of the sale. The first judgment to which reference is made is a judgment delivered by Mr. Justice Gajendragadkar and Mr. Justice Shah in Dhusahhai Polabhai v. The Special Land, Acquisition Officer (1954) First Appeal No. 05 of 1953 decided, by Gajendragadkar and ShahJJ., on December 3, 1954 (Unrep.). In that case the claimants had filled a purshis saying that they did not want to lead any oral evidence in the matterand the State also followed suit by saying that they did not want to lead any oral evidence. The Court was really considering the effect of this purshis and with respect it rightly came to the conclusion that inasmuch as the claimants were in the position of plaintiffs, if they did not lead any oral evidence to show that the conclusions recorded in the award were erroneous and that the award offered unsatisfactory compensation, the award would be confirmed. Therefore, this was a clear case where there was no admission by the State that the sales relied upon by the claimants were genuine sales, and in the absence of any oral evidence led by the claimants the position would have been that the claimants would have failed and the Court took a very indulgent view and remanded the matter back to the District Court for giving an opportunity to the claimants to lead the necessary evidence. There is an observation in the judgment of Mr. Justice Shah which may for a moment lead to the conclusion that in every case a party must lead evidence to prove that the instance of sale is an instance of genuine sale, and this is what the learned Judge says:

Whichever party relies upon an instance of sale as furnishing evidence of market value of the land under acquisition must lead evidence that it was an instance or a genuine transaction of sale of property for its true market value.

With respect, obviously this observation which is perfectly correct is subject to the qualification that where the other side admits that the sale is an instance of a genuine transaction, then the necessity of proof is dispensed with.

3. The other judgment relied upon is an earlier judgment of the same bench: The Special Land Acquisition Officer v. Shrimant Ganpatrao Trimhakrao Patwardhan (1954) First Appeal No. 798 of 1952. Mr. Justice Gajendragadkar in this judgment says:

A purshis whereby parties agree that certain documents should be produced cannot in our opinion legitimately lead to the inference that the parties also agree that the consideration shown in the several documents should be regarded as affording evidence about the proper value of the properties in question.

With respect, we entirely agree. If the parties only agreed that the factum of the sale need not be proved, then one cannot draw the inference that the parties have agreed to something more, and what the parties have not agreed to must be proved according to law.

4. Therefore, in this case what we have to look at is what was the agreement between the parties with regard to these instances of sale. By consent a statement showing the sales in the villages of Sahar and Kurla was put in and the statement was admitted by consent subject to the right of the parties in any reference to prove that the transactions set out in the statement were not evidence of the market value of the land in that area. The consent recorded by the learned Judge is perfectly clear and explicit. The parties reserve to themselves the right of leading evidence to show that the transactions mentioned in the statement did not constitute evidence of the market value of the lands in that area. But it is equally clear that, when that right was not exercised, the result was that the parties agreed that the transactions recorded in the statement did afford evidence of the market value of the lands in that area, and therefore when we have in this ease the instances of sales with regard to which no evidence has been led, the only inference that we can draw is that the parties failing to avail themselves of the right reserved to them under this agreement admitted that those instances were instances of genuine sales. With regard to Kolebalyan the agreement was that the statement of instances of sales relied upon by the parties so far as Kolekalyan lands were concerned was put in by consent and marked exh. E, and it appears that this consent was also conditional upon the right of the parties to lead evidence and in certain cases evidence has been led with regard to some of the sales relied upon by the parties. Therefore, in our opinion, it is entirely fallacious to suggest that in every case, irrespective of what parties might agree to, it is incumbent upon the claimant to prove that the sale represented a genuine transaction, As we have already pointed out, undoubtedly the burden of proving that is upon the claimant, but the need for proof may be dispensed with by the consent given by the other side that the claimant need not lead that evidence as the fact was admitted by the other side.

5. [The rest of the judgment is not material to this report.]


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